New rights for agency workers and agreement on the 48 hour working time opt out - Employment Law News Autumn 2008

25 September 2008

There have in the last few years been a number of important legal cases in the UK that have considered who the actual employer of the agency worker is: the employment agency or the hiring end user?

Conflicting decisions have meant that from a legal perspective it is possible for an agency worker not to be employed by the employment agency or the hiring end user, thus depriving the worker of an “employer” for the purposes of employment rights, for example, the right to claim unfair dismissal or redundancy.

The view of the European Union (“EU”) was that something had to be done and for many years it has been attempting to reach agreement on a draft directive that protects the rights of agency workers in Europe. It is currently estimated that in the UK alone there are up to 1.5 million agency workers. Against this background, the UK Government has negotiated an agreement with the Trades Union Congress (TUC) and the Confederation of British Industry (CBI), which was accepted in principle in June 2008 by EU Ministers under the draft Temporary Agency Workers Directive.

Much of the finer detail is still to be finalised, however, if implemented UK agency workers will receive equal treatment (as compared to hiring end user permanent employees) after 12 weeks service in the assignment. Equal treatment will relate to basic working and employment conditions; for example, remuneration, paid holiday, working hours, overtime, maternity and anti-discrimination provisions. However, it is unlikely that agency workers will be entitled to the same occupational benefits, like pension provision or sick pay, as their comparator permanent employee at the hiring end user.

Following implementation, which is likely to be in 2010, businesses that regularly use agency workers might review whether the benefits of such a relationship are as tangible as they currently appear to be. Having done so, they may decide to explore other possibilities.

Linked to agreement over the terms of the draft Temporary Agency Workers Directive; it was also agreed by EU Ministers in June 2008 that the UK may continue to retain the wider opt out for workers from the maximum 48 hour working week under the Working Time Directive.

However, any future retention for the UK is likely to be subject to stricter conditions. These may include requirements preventing workers agreeing to opt out of the 48 hour maximum week during the first four weeks of their employment; workers needing to renew their opt out after a year; workers being subject to a new cap of 60 working hours a week averaged over a three month period and inactive on-call time no longer being considered working time.

Assuming that the proposals are adopted by the European Parliament, which is expected to be in Spring 2009, the revisions to the UK Working Time Regulations are also likely to be implemented in 2010.

For further information contact Andrew Masters on 01227 763939.
 

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