Are Agency Workers Receiving Fair Treatment From Employers?

Agency workers are individuals who work through employment agencies under a contract of employment or services. They are usually hired on a temporary basis on flexible terms and conditions to cover short-term absences and are often paid the national minimum wage.

The EU directive and regulations governing this type of employment specifically refers to workers instead of employees, underlining the fact that they do not have the same rights to claim unfair dismissal or redundancy pay. In other words, they have fewer employment rights than permanent staff.

However, in many cases the work carried out by agency workers is of equal value to that done by permanent employees and there is growing pressure to ensure that they are properly protected.

The Agency Workers Regulations 2010

The Agency Workers Regulations, which came into effect on the 1^st October of 2011, grant certain employment rights to agency workers such as the national minimum wage, rest breaks and paid annual leave. They also provide for equal treatment with respect to basic working and employment conditions after completing twelve calendar weeks in the same job.

Following twelve weeks in the same position, agency workers are entitled to the same pay, working time rights and paid holiday as permanent members of staff. Employers should be aware of these provisions regarding pay, night work, rest periods, overtime rates and duration of working time and take all the necessary measures to comply with equal treatment of agency workers on the twelve week qualifying period condition.

Derogation from EU Regulations

According to the EU regulations, an employer can derogate from the rules and continue to pay less an agency worker that those hired as a permanent employee in certain circumstances.

The so-called 'Swedish derogation' model provides an exemption to the equal pay rules. Specifically, a worker is not entitled to an equal pay if he is employed for a new and different assignment with the same employer or there is a break of four weeks during assignments in the same job and he is paid during that break.

Despite anti-avoidance provisions, many recruitment agencies and firms make use of the derogation rule and the Trade Unions Congress (TUC) argues that it is becoming a widely used model of employment. Therefore, the safeguard of agency workers rights provided by the regulations is effectively being undermined as these types of contracts generally offer low pay, lower possibility of career progression and no job security for employees.

Trade Unions are Raising the Issue of Agency Worker Mistreatment

Most European countries have adopted similar working and training conditions and equal pay for agency workers to that of permanent staff. However, in the UK the TUC has complained to the European Commission claiming that the UK has failed to adequately and effectively protect the rights of temporary agency workers, contrary to the EU Directive that condemns the misuse of the Swedish derogation contracts. It claims the Agency Workers Regulations leave the agency workers unprotected without any safeguards.

Comment

It seems likely that some employers are abusing the rules but it remains to be seen whether there will be amendments or revisions with respect to the regulations. In the meantime employers or workers unsure about their rights and responsibilities under these contracts should seek expert legal advice. For more information, contact Aneil Balgobin via e-mail ABalgobin@rollingsons.co.uk or by telephone on 0207 611 4848..