Increased Rights for Agency Workers

The UK has approximately 1.3 million agency workers on temporary assignments in the public and private sectors, and the stated aim of a new Directive is to provide protection for these workers, whilst maintaining a flexible labour market.

The Agency Workers Directive, currently undergoing initial consultation, aims to apply the principle of “equal treatment” in relation to basic working and employment terms and conditions after 12 weeks in a given job.

“Equal treatment” in this context relates to the agency worker’s terms of employment, such as duration of working time, overtime, breaks, rest periods, night work, holidays, public holidays and basic pay, plus other contractual entitlements such as shift allowances, unsociable hours and similar rights. After 12 weeks in a given job, a temporary agency worker would acquire the same rights as those employees of the hiring company who occupy the same job, as if they had been recruited directly by the hiring company.

Consultation Process

In November 2008, the European Parliament and Council adopted a preliminary policy on temporary agency workers for public consultation. Consultation involves obtaining the views of key stakeholders such as agency workers, temporary work agencies, trade associations and hirers, to ensure that implementation of the Directive reflects their real and legitimate interests.

The initial period of consultation ends on 31st July 2009. Based on the results of the initial consultation and the responses from key stakeholders, firm proposals and regulations will be produced later this year for final consultation.

The Directive is expected to be implemented by EU member states on 5th December 2011.

Current Rights

Currently, temporary agency workers receive a number of statutory entitlements such as paid holiday, cover under the National Minimum Wage Regulations, rest breaks and limits on working time (in accordance with the Working Time Regulations 1998). They are also protected from unlawful wage deductions and any kind of discrimination under Equality legislation, as well as protection under Health and Safety legislation.

However, agency workers would not normally be entitled to redundancy pay, the statutory minimum notice periods when their employment is terminated, or to make a claim for unfair dismissal.

The New Directive

The new Directive will apply to all agency workers with a contract of employment or employment relationship with a temporary work agency. An agency worker is defined as:

“Workers engaged through, or by, an employment agency responsible for their payment of wages, and supplied to a hiring employer / user undertaking on a temporary basis”.

Some agencies employ their workers directly and will therefore also be governed by the new Directive.

The Directive proposes that basic working and employment conditions of temporary agency workers should, for the duration of their assignment after 12 weeks in the role, be at least those that would apply if they had been recruited directly by that undertaking to occupy the same job,.

In addition, employers will need to ensure that temporary agency workers are informed of any vacant permanent positions.

Some questions to think about

• Who will meet the additional cost?
• Does the 12 week qualifying period apply to part-time as well as full-time staff? Is it “12 calendar weeks” or “12 weeks of work”?
• What period of time will break the 12 week qualifying period?
• Can a “transfer fee” be charged if the worker changes from temporary to permanent employment?
• Will agency workers be entitled to use child-care facilities, training facilities, canteen facilities and transport services?
• Who will be responsible for compliance with obligations under the Directive?
• Who will have to deal with employment disputes?
• Who will have to deal with disciplinary matters?
• Can agency workers be made redundant?
• Will the agency worker have to be paid between assignments?