How Do I Handle It?
“An employee who’s with us on secondment from university has raised a grievance under our internal procedure after finding out he’s paid less than his permanent colleagues in the same role – how do I handle it?”
First of all, you need to be very clear about the employment status of the secondee. A secondee is properly described as an individual who has been temporarily assigned by their employer to the business of a “host” for a defined period. This is usually agreed under the terms of a “secondment agreement” between the “host” and the employer.
The secondment agreement shouldn’t replace or alter the employment contract which already exists between the secondee and his employer. This means that he should remain an employee of his employer – not the “host” – throughout the secondment period. His continuity of employment will be unaffected and he will return to his employer at the end of the secondment. You should be careful never to refer to a secondee as an “employee” – this may evidence their integration into your business, allowing the secondee to claim the enhanced protections of “employee” status.
You will need to check the secondment agreement carefully. It should state who is responsible for the day-to-day management of the secondee, and if he can raise issues under your procedures. A well drafted secondment agreement will keep most management responsibilities with the employer. Therefore, in most cases a secondee will not be able to use your internal procedure unless (1) the secondment agreement allows them to; or (2) they have become an employee due to their integration into your business. Instead, they will ideally still be governed by their employer’s policies and procedures.
In any event, a secondee has no right to equal pay with permanent members of staff and therefore there is no risk of a Tribunal claim in that regard. You should check that you are not paying the secondee directly; as the “host” you should reimburse the employer for providing the secondee rather than add him to your payroll. This helps prevent “employee” status from arising.
It is still important to consider the nature of the secondee’s grievance to check if there is a risk of a discrimination claim. A secondee will count as a “contract worker” for the purposes of discrimination legislation and can claim against both his employer and his “host”. In this case, whilst there is no equal pay claim, the secondee may still make separate allegations of, for example, sex or age discrimination which are not related to the pay disparity between himself and his permanent colleagues.
If you suspect that a discrimination claim is on the horizon, you should conduct your own enquiries into the secondee’s allegations and liaise with his employer, if appropriate, to ascertain the facts and gauge their views. You should then take legal advice on how liability is apportioned under the secondment agreement – it may include warranties and indemnities which relate to tribunal claims and who takes responsibility for costs and settlements. If matters progress and you are involved in tribunal proceedings, you will have to take advice on negotiating a settlement between the parties or defend the claim all the way to the Industrial Tribunal.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.