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January 22, 2010

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Agency workers to get same protections as employees

New regulations to ensure that agency workers enjoy the same treatment as their directly-recruited colleagues are set to come into force in October 2011, after they were laid before Parliament yesterday (21 January).

The Agency Workers Regulations 2010 provide all agency workers who have been in a job for 12 weeks with rights to the same pay, holiday, working time, overtime, and breaks as would apply if they had been recruited directly by the same hirer/employer to occupy the same job.

In terms of liability for such workers, the agency will be responsible for any breach of a right in relation to equal treatment for which they are responsible. However, the hirer (the agency’s client) will be liable if the agency can prove that it took reasonable steps to determining the worker’s basic working and employment conditions.

The Regulations implement the European Agency Workers Directive 2008/104/EC, which has been the subject of much discussion and consultation over the past two years. Following an agreement reached between the TUC and Confederation of British Industry (CBI) in May 2008 on how fairer treatment for agency workers in the UK should be promoted, a consultation was launched in May 2009, on the basis of which the Regulations were drafted. These were open for consultation until 11 December last year and the Government issued its response yesterday.

Publishing the response, minister for business, innovation and skills, Pat McFadden, said: “This change in the law is aimed at ensuring fairness for agency workers in relation to the permanent employees they work alongside. They are being implemented in line with the TUC/CBI agreement, which sought to ensure fairness while maintaining flexibility for the UK labour market — a very important factor in our ability to create jobs.”

The CBI, however, despite reaching that agreement, remains strongly opposed to them in principle. Said deputy director-general, John Cridland: “These Regulations are bad news for the economy, as they will hamper job creation. Employment agencies help over a million people find work and these proposals will make it more expensive for companies to use agency temps by increasing bureaucracy.”

EEF, the manufacturers’ organisation, was pleased that the Government had resisted calls to implement the regulations earlier than October 2011 but it, too, is worried about their impact on employers. Head of employment policy at the EEF, David Yeandle, commented: “We remain concerned about the costs and administrative burdens that this new legislation will impose on employers and, in particular, about the decision to include some bonus payments in the definition of pay that will be used for equal treatment.”

The important thing now, he concluded, is for the Government to publish “clear and practical guidance for employers” well before implementation.

The TUC hailed the Regulations as “good news for agency workers”, with general secretary Brendan Barber calling them “a significant step towards securing a fair deal for agency staff, and stamping out some of the worst abuses”.

He went on: “While we are disappointed that the protection will not start earlier, union campaigning — both here and across Europe — has secured another advance for people at work today.”

On the issue of liability, John Cridland was unequivocal: “Agency temps’ employment relationship is with the employment agency, not the agency’s client, and the law should recognise this.”

Writing in next month’s (February) SHP, however, law lecturer David Branson, argues that, in terms of health and safety especially, liability must lie at the door of the party who creates the risk, or problem — the hirer/employer — and no one else. He adds: “The imposition of civil liability on the end user is both the fairest and most effective way of ensuring that the health and safety of the worker is protected. To make the agency worker liable for his own actions, when he has little real control over his working environment, is not only unjust and unreasonable but also undermines the other key reasons for civil liability, such as the availability of compensation and the need for deterrence. (Click here to read the full article.)

“To place the liability on the agency may provide for compensation, but it still does not really address the issue of deterrence, and the understanding of what is just and reasonable.”

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