Ask the Expert: Sarah Howlett on Agency Workers' Rights
Agency Workers is a hot topic at the moment due to the recent deal agreed between the government, the unions and the CBI to give agency workers greater rights. Agency workers currently have some protection in law as they usually have the same rights as "workers". As these rights are limited, agency workers often claim to be employees. In recent judgements the courts have generally held that agency workers are not employees but the courts have been reluctant to reach these decisions as it leaves agency workers with little protection. Due to concerns that agency workers do not have sufficient rights the government has agreed to provide the following:
- after 12 weeks on an assignment an agency worker will be entitled to equal treatment to a comparable permanent employee
- it is not clear what equal treatment means but it is likely to cover basic pay
- equal treatment will not cover the right to join occupational pension schemes or share option schemes or to benefit from contractual sick pay or maternity pay arrangements
- it also appears that equal treatment does not cover the right to bring a claim for unfair dismissal or claim a redundancy payment.
The new rights will be implemented through the Temporary (Agency) Workers Directive which is likely to come into force in the UK in either April or October 2010. It is intended that the new legislation will reduce the number of employment claims but the deal does not give agency workers the same rights as employees and therefore it may not have its intended effect.
My top tips for avoiding employment claims by agency workers:
- Do not engage agency workers for more than 1 year in order to prevent an agency worker having any right to claim unfair dismissal.
- Ensure there is a robust contract in place with the agency which makes it clear that agency workers supplied are not your employees.
- Do not integrate agency workers into your organisation eg do not give agency workers responsibility for supervising staff.
- Do not discriminate against agency workers. They do have the right to bring discrimination claims against an end-user.
- Do not put disciplinary and grievance procedures in place for agency workers. This is only appropriate for employees.
Sarah Howlett is a Partner in McGrigors` Employment and Pensions practice with over 10 years of experience in employment law. Sarah regularly advises on executive recruitment, and severance, large scale redundancies, transfer of undertakings and changing terms and conditions. She also specialises in advising on status issues, termination payments and the employment aspects of tax savings schemes involving salary sacrifice.
McGrigors will be contributing to JSB`s Agency Workers: Law and HR Best Practice Conference on 28 January 2009.
