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Agency Workers Directive Consultation Launched

With the Agency Workers Directive now finalised and UK implementation scheduled for 2010, the Government has published a consultation paper by the Department for Business, Enterprise & Regulatory Reform (BERR) on implementing the Directive in UK law. The consultation was launched on 8th May 2009 and will run until 31 July.

Under the Directive temporary agency workers receive the same basic conditions in pay, working hours and holidays as permanent staff in a bid to encourage fairness and equality in the workplace.

Employment Relations Minister Pat McFadden said: "These proposals will take us another step forward by boosting the rights of agency workers, while making sure both employers and agency workers have the flexibility they need."

The Government has derogated from the EU’s requirements to implement equal treatment rights from day one, insisting that the Directive’s rights only apply to UK agency workers (unlike the rest of Europe) once they have spent 12 weeks in the same job.

COMMENT

Under the proposals temporary workers will be able to bring a claim before an Employment Tribunal if they can show that a permanent employee doing the same job is paid more. As few businesses today negotiate formal collective pay agreements with workers, it would be difficult to establish equal treatment, making any defence much more complicated.

The Government proposal that the equal treatment rule should only apply to those taking up temporary work through an 'employment business', and not those seeking permanent employment through an 'employment agency'.

In the Government’s view, in the latter case, the worker's contract tends to be with the end-user, and that the Directive is not intended to cover this situation.

However, claims will most likely be against the employment agency, which in many cases pays the temporary worker, rather than the end user. The difficulty for the agency is that it is normally the end user rather than the agency that decides the level of pay.

To avoid a surge in tribunal claims the EC has proposed that where confusion does occur, employers and agencies should work together in order to ensure that pay for agency staff is comparable to their permanent counterparts, thus sharing the responsibility of ensuring equal treatment.

Pearson Hinchliffe Commercial Law will post updates on this issue on this website in due course.

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