At its annual conference earlier this month, the TUC called for a high profile campaign for equal treatment between agency workers and employees. The CBI has been swift to raise its concerns over what such a move would mean for the economy.
The supply of staff through agencies allows flexibility for businesses and workers alike. Businesses have the flexibility to meet extra demand during busy periods, normally avoiding the red tape of an employment relationship. In addition, the agency itself takes on much of the responsibility of ‘employer’ - such as paying wages and dealing with tax liability.
However, the law in this area has become complex over the past few years. In this article we reflect on where employers stand with agency workers and what the future might hold.
What rights do agency workers have?
Agency workers have fewer rights than permanent employees but most will still have those accorded to 'workers' under UK law, the majority of which arise between the agency and worker. These include the right to the National Minimum Wage, Statutory Sick Pay (after working for the agency for 3 months) and Statutory Maternity, Paternity or Adoption Pay.
However, there are certain rights which businesses need to consider when using agency staff, including:
Not to be discriminated against: on various grounds such as race, sex, sexual orientation, age, religious/philosophical beliefs or disability;
Paid holiday: 24 days (including bank holidays) from 1 October 2007;
Rest breaks and limits on working time: regular rest breaks and the right not to have to work, on average, more than 48 hours per week; and
To be provided with a safe place and safe system of work.
What does the future hold?
Recently, there has been a trend for agency workers to claim employment status and, therefore, employment rights against their employers. In the last year we have seen a series of high profile cases in which the courts have resisted granting such rights. However, the Court of Appeal is due to consider the position again in October 2007 in the case of James v Greenwich Borough Council. If the Court decides that the agency worker has employment status, the decision will set a precedent which will be difficult for the lower courts to ignore (although this will always depend on the circumstances of each case). One thing, however, is definite - the courts will continue to call on the Government to clarify the uncertainty through legislation.
From 1 April 2008, legislation will be introduced to protect the most vulnerable agency workers, such as migrant workers, ensuring that they get at least the rights set out above.
In addition, there are calls for the law to be extended further with both the European Union and the TUC calling for increased rights for all agency workers. Draft EU legislation contains proposals under which temporary agency workers would receive the same pay, benefits and basic working conditions as permanent workers. However, the continued high level debate, plus added pressure from the courts, may well mean that we see more rights given to agency workers, even if not to the extent called for by the TUC and EU.
Jennifer Leeder is an Employment Solicitor at Howes Percival LLP.