For many workers and employers, agency working is an attractive and successful work model. However, for many years there has been debate within Europe and the UK about the extent to which agency workers should receive employment protection.
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”.
However, full details of the legislation that will enact these proposals have yet to be announced. For example, it is not yet known whether the new rights will trigger only once a worker has spent 12 weeks or more with an end user or whether, having accrued that service, protection will be retrospective. Similarly, it remains to be seen whether there will be any aggregating provisions for workers who have a number of short-term assignments that, collectively, exceed 12 weeks. Previous calls for comparable working rights for agency workers have highlighted inequality of pay, something that the new proposals seem set to address. Where this is limited to cash payments, hours and rest payments, the practical and financial implications are likely to be straightforward. The Government has confirmed that the new rights will not extend to occupational social security systems. However, if benefit schemes such as pensions and insurances were to be included, this would present a significant challenge for employers.
A draft European Agency Workers Directive, published in 2002, also proposed equality of rights for agency workers, but it faced opposition from the UK and other member states. Following its recent announcement, the Government now intends to reopen talks with its European counterparts to try to make progress on the draft directive. However, there are still issues to be resolved, as well as differences between the draft directive and the Government’s proposals, which may impact upon any domestic legislation. For example, the qualifying period has been one of the most contentious areas of discussion, with the original draft directive providing for equal pay after six weeks, rather than the 12 weeks proposed by the Government. The European Council meets in June and, subject to these outstanding issues being resolved, we may see an agreement on the directive following that meeting. This would allow domestic legislation implementing the directive to be introduced in the next parliamentary session.
While the Government’s announcement clearly paves the way for an important extension of rights for a significant number of UK workers, the proposal for a 12-week qualifying period will provide employers with a degree of flexibility and will mean that genuine short-term appointments will not be entitled to “equal treatment”.
In addition, the proposed changes will not give agency workers the right to claim “unfair dismissal” or to receive statutory redundancy payments, where they do not currently have those rights.