Agency Workers

In the matter of statutory sick pay, from 27 October 2008, agency workers who have a contract or series of contracts for a period of three months or less will have - subject to meeting all the qualifying conditions - the same right to statutory sick pay as other workers. Such agency workers will be able to receive statutory sick pay from day one of their contract or assignment. It will not apply to a period of incapacity to work on or after 27 October 2008, that is linked to a period of incapacity to work before this date and which was disallowed because of the exclusion of agency workers from statutory sick pay. The standard statutory sick pay weekly rate of £74.50 in the 2008-2009 tax year will apply, regardless of that person's nationality or citizenship, if they have average earnings of £90 per week or more.

Employment agencies themselves are covered by Sex Discrimination Act 1975 s.15 and Race Relations Act 1976 s.14 which make it unlawful for an agency to discriminate against a person in the terms on which the agency offers to provide any of its services, or by refusing or deliberately omitting to provide any of its services, or in the way it provides any of its services. This original legislation has additionally been amended in Race Relations(Amendment) Act 2000 to comply with EU Directive 2000/43. This means agency workers are protected from discrimination on the grounds of race, sex, disability, religion or belief, sexual orientation, age and nationality.

An agency workers right to claim unfair dismissal and redundancy pay is slim and hard to achieve. It is relatively rare for an employment tribunal to agree that an agency worker has acquired employee status with the end user of their employment. This can even occur if the agency worker has spent several years working for the company. However , if the employee did attempt to prove this, they would need a vast amount of solid evidence in order to prove that a contract had been created between them and the end user. It would be necessary to look at what their contract with the agency actually said, and in particular whether they are stated to be employees of the agency.

In the current economic climate, it is unlikely that their agency would be able to find alternative work. This demonstrates that regards unfair dismissal and redundancy pay towards agency workers means they are not in a very good position, and it is the very few that manage to be successful in Employment tribunals in showing they deserve to have employee status. An example of this is shown in the case of James v Greenwich Borough Council, the Court of Appeal held that an agency worker is in reality an employee, where, on the facts of a given case, it is necessary to imply a contractual relationship between the worker and the business. This means if the contracts between the agency worker and the agency, and between the agency and the business do not provide an adequate framework for the working arrangements of the agency worker or do not encapsulate the agency worker’s rights and responsibilities vis-à-vis the business, then a contract should be implied between the agency worker and the business. For example, if the agency worker agreed, directly with the business, different working hours than had been agreed with the agency, then one may well have to implement a contract between the agency worker and the business to make sense of the arrangements. However, if they do succeed not only will orders for payment of awards have to be met, but the Revenue will have to be reckoned with. The Revenue is no longer shy in coming forward to claim employment tax and national insurance if it considers there is an employment relationship that has not been disclosed. In addition, wasted management time will be irrecoverable from any source.

Under the new legislation it appears that Agency Workers might be entitled to redundancy pay after 12 weeks in one organisation if their permanent employee comparator would be entitled to a contractual redundancy payment in the same circumstances. However, this will depend on how pay will be defined. It also remains to be seen how statutory redundancy payments will be dealt with. In order to be entitled to statutory redundancy the individual needs to be an employee and have two years continuous employment. Currently there is no duty to inform and consult agency staff. However, if for example, a firm has 50 members of staff and 35 of these are agency workers, at present there would be no obligation on the employer to consult collectively if closing the site with the loss of all jobs because fewer than 20 employee redundancies are envisaged. However, if agency workers count for the purposes of the threshold then collective consultation with employees will be required in such circumstances when the Directive, is implemented in the UK and it is likely to be in the organisations best interest to collectively consult temporary workers (most likely through the agency) as well as employees on redundancy to avoid potential claims. There is still a lot of ambiguity surrounding this. This legislation brings a new protection to agency workers and defines them in a better position.

On the 5th February 2008 an agency workers unfair dismissal claim was rejected by the Court Of Appeal, putting an end to concerns over agency workers employment statutes. Mrs James who worked for Greenwich Council, brought a claim of against the council when she was told she was no longer required. Mrs

James claimed she had an implied contract of employment with the council, despite signing a Temporary Workers Agreement which stated there was no such contract.

The Employment Appeal Tribunal ruled Mrs - therefore she had no status as an employee. However, Mrs James appealed the decision, which was rejected by the Court of Appeal, making clear that agency workers cannot claim employment status without a written contract.

The Government has come under increasing pressure from trade unions and others to legislate in favour of agency workers, and it recently announced that it has reached a deal with the Trades Union Congress and the Confederation of British Industry under which agency workers in the UK will receive “equal treatment” after 12 weeks of employment. “Equal treatment” is defined as “at least the basic working and employment conditions that would apply to the workers concerned as if they had been recruited directly”.

In 2002 the European Commission adopted a proposal for a Temporary Agency Workers Directive, in which temporary agency workers would receive the same pay and basic working conditions as permanent workers for equal work. A new development was then proposed in October 2005, were the Commission announced that it had plans to scrap 68 proposed regulations. This created concern that it would include the draft for the temporary agency workers directive, thankfully this was not the case. A more recent development then occurred on 22nd of October 2008, were the European Parliament voted to adopted the Temporary (Agency) Workers Directive. This was the final hurdle necessary before some routine formalities before passing into EU law. The European Union announced that the directive must be in place by the 5th of December 2011. In addition to the implementation date, the EU published the official wording of the directive - which will give temps in the UK equal rights to permanent staff after 12 weeks with an employer. The UK secured this 12-week qualifying period due to a .

The European Directive has allowed agency workers to obtain equal treatment rights after they have worked on the same assignment for 12 weeks. This means that agency workers will be entitled to the same pay as permanent staff doing the same job, and stronger protection from exploitation. However, the law does not give qualifying agency workers the same rights as permanent employees to sick pay and pensions. The General Secretary of the TUC, Brendan Barber said “This new Directive is the result of six years of committed campaigning by unions. Too many agency workers in the UK have faced unfair treatment and injustice. Now agency workers will now finally have a fair deal. Although the view of new directive was looked upon likely by agency workers, a different view was took by the agencies themselves. Ruth Hounslow, public affairs manager for Manpower, the largest agency, puts forward the view from inside the industry: "Manpower has always supported the principle of protecting agency workers' rights. However, we don't believe the Directive as it is currently framed does this. It is based on the assumption that permanent full time work is what everyone wants: it isn't. People do agency work because it gives them choice, develops transferable skills and enhances work/life balance. The directive could limit UK productivity by making it more bureaucratic and costly to use flexible staffing solutions. Employers will be far less able to flex their workforce to meet changes in their business."

Agency workers can seek legal protection from the Employment Agency Standards Inspectorate it is part of the Department for Business, Enterprise & Regulatory Reform. They are responsible for enforcing the provisions of the Employment Agencies Act 1973 and the associated Conduct Regulations which govern the private recruitment industry. The Employment Agency Standards Inspectorate investigates every relevant complaint about the conduct of an agency which falls within the scope of the legislation which it enforces. This legislation sets minimum standards of conduct and is designed to protect the interests of workers, wither permanent or temporary agency workers. Inspectors within the Employment Standards Agency have the right to enter premises which are used for employment agency purposes and examine documents and records to check they are at standard of the Employment Agencies Act 1973 and Regulations. If necessary they can prosecute employment agencies for breach of the legislation and take it to an Employment Tribunal, encouraging the company to be prevented from working or carrying on work as an employment agency.

Additionally to this agency, workers are protected by the Conduct of Employment Agencies and Employment Businesses Regulations 2003. These regulations stop them, for example, from charging workers fees for finding jobs. They must also ensure a worker has any qualifications legally required to do the work. This means that agency is ensuring you have the required qualification and skills for the job in which you are taking part.

In conclusion we can see that there are a number of ways agency workers within the UK are protected. Regulations, laws and directives give them protection in working times, wages, health and safety, holidays and anti-discrimination. Although there are a number of protections provided to agency workers, on the other hand there is the more less protected elements, such as redundancy and unfair dismissal. It is the rare case that will be successful. The new directive that is currently getting passed by parliament will provide agency workers with more substantial rights within their employment, although the agencies themselves are impartial on the new directive coming into force.

BIBLIOGRAPHY

BOOKS
Employment Law Key Facts                                   Jacqueline Martin & Chris Turner

Introductory Scots Law in Theory and Practice,       Alistair B Wylie & Sean J Crossan

Q & A Employment law 2008-2009                                                      Richard Benny

WEBSITES

www.google.co.uk

www.worksmart.org.uk

www.redundancyforum.co.uk

www.press.eversheds.com

OTHER
Employment Agencies Act 1973

Employment Agencies and Employment Businesses Regulations 2003

Sex Discrimination Act 1975

Race Relations Act 1976

Temporary Agency Workers Directive

Health and Safety at Work Act 1974

The Management of The Health & Safety at Work Regulations 1999

Working Times Regulations

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