This essay will consider the growth and history of agency workers rights in the UK, as well as the problem of Temporary Agency Work Regulation 2010. The study will be concluded by the examination of key cases and statutes.

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Agency workers make up a significant portion of the workforce in the United Kingdom (UK). Currently, the total amount of workers engaged in temporary work through an employment agency is estimated to be over 1 million that is around 3 % of the workforce.  Despite this substantial use of agency arrangements in the UK, problems have arisen in terms of the rights granted to agency workers. This essay will consider the growth and history of agency workers’ rights in the UK, as well as the problem of Temporary Agency Work Regulation 2010. The study will be concluded by the examination of key cases and statutes.

An agency worker arrangement involves temporary workers signing up with an agency which then attempts to find work for the worker on a temporary basis. The agency worker does not have to undertake work for the agency and the agency is under no obligation to find work for them. If work is found and accepted then the worker goes to work on a temporary basis for a third party client of the employment agency. The relationship is therefore a triangular one. The worker has a contract with the agency under which the agency will pay them for the work. There is also another contract between the agency and the client, under which the client will pay the agency for the worker.

There is a great deal of variation amongst the type of agency arrangement entered into. Some agencies will be large, while some will be small; some will be general and some specialist. The way in which they treat their workers will also vary. The more progressive, experienced and larger agencies tend to work in partnership with clients for ongoing supply of skills. Therefore the relationships involved have a propensity to be clearly defined. The workers receive a rewarding career with wide choice and experience and the client receives flexible and skilled workers. In these types of arrangements with progressive agencies it is common for the worker to be explicitly employed by the agency and the worker is therefore entitled to take the benefit of employment rights. This arrangement causes no difficulty under labour law, where objective is establishing the appropriate balance in the relationship between employee and employer. This means that both sides should take into account rights and duties of opposite party.

However, there are other forms of arrangement which are entered into to exploit the flexible working nature of agency relationships. In the case of Consistent Group Ltd v Kalwak and Others the workers were Polish nationals who had been recruited in Poland by the agency and who were provided with work for a food processing client. They were required to stay in crowded hostel accommodation which was organised by the agency and were given very poor pay. The contracts entered into contained terms designed to limit the rights of the workers and this case is a demonstration of the potential for abuse which the employment agency arrangement has the prospective to give rise to.

The reasons clients tend to use agency workers can include a desire for flexibility in the workforce, a need to keep ‘headcount’ down, and to avoid legal complexities such as immigration rules. The particular emphasis on flexibility means that clients do not wish to engage permanent staff or to enter into relationships that will give rise to long-term commitments. Yet, this element of flexibility comes at a cost to the worker, who is left unprotected and subject to potential abuse. There must therefore be some level of protection afforded to these workers, but a balance must be struck to ensure that the needs of business are not unduly hampered.

Employment agencies are subject to the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (and its amendment in 2007). The Act introduced the differences between an employment agency and an employment business, where in the former case agency becomes employer and in the latter a client of the agency exercise some control over worker. The regulation however, requires agencies to give some rights to workers for example: written statements of their terms and conditions and statement whether the workers are employees of the agency or self-employed as well as health and safety issues. Agency workers have also right not to be penalised in any way for moving to another agency or client. However this regulation did not deal with the problem of establishing an employment relationship between an agency worker and the agency.

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The agency arrangement makes the most sense to the outsider when the nature of the work is such that the identity of the worker is irrelevant, in that the work is unskilled, and there is a high rotation of staff. The agency worker is provided for a short period of time and does not develop a particular relationship with the client company. However, in modern times agency arrangements have sometimes been used in relation to skilled workers who have been provided to clients for long periods of time. In these cases the formal relationship remains as the tri-partite one with ...

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