Since 2002 the EU has been discussing the protection of agency workers although a directive was blocked, primarily by Poland and the UK, for a number of years. An agreement was finally reached in the UK between the TUC and CBI in May 2008 on the key principles of such a directive, and the directive was adopted by the EU in December 2008. It must be adopted by member states by 5 December 2011.

On 8 May 2009, The Department for Business Innovation and Skills, BIS (formerly BERR), issued its consultation paper on the implementation of the directive. Responses are due to this initial consultation by 31 July 2009. A second consultation on the actual form of the regulations under Section 2(2) of the European Communities Act 1972 will commence at the end of the year.

So what does the Agency Workers Directive 2008/104/EC (the Directive) aim to do? The aim of the Directive is to ensure the protection of temporary agency workers by applying the principle of equal treatment set out in Article 5. Article 5 provides that the basic working and employment conditions (duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays and pay) of temporary agency workers should be, for the duration of their assignment at the hirer, at least those that would apply if they had been recruited directly by that hirer to occupy the same job.

There is a qualifying period of 12 weeks (at present proposed to be calendar weeks whatever the working arrangements) before the protection of the Directive will apply. This qualifying period means that the Directive will only affect about 40% of the 1.3m agency workers on temporary assignments across the UK.

The Directive only applies to people finding temporary work through an employment business which introduces workers to businesses for temporary work only. It does not apply to people who are self-employed or work through their own limited company. The Directive does not change the contractual relationship of an agency worker, which remains with the employment business.

The Government’s stated aim is to ensure fairer treatment for agency workers whilst maintaining the flexibility that the agency sector provides for both workers and employers.

The current proposals for consultation (which are based on the TUC/CBI agreement) are that equal treatment will include:

  • Holiday – including where the holiday arrangements offered to employees at the hirer are more generous than statutory minimum holiday entitlement. The employment agency will be expected to make enquiries of the hirer as to its contractual holiday arrangements and to pay the temporary agency worker in such a way as to reflect these. It is proposed that at the end of each assignment there should be some form of cash payment which equals out the temporary worker’s entitlement to holiday so that holiday does not accrue across different assignments with different hirers with differing contractual holiday arrangements.
  • Working time – working time protections and rest periods should be the same as those for permanent employees.
  • Pay – equal pay includes basic pay, holiday pay, overtime, shift allowances and bonuses if they pertain to personal and individual performance. However, pay is not proposed to include long term incentive arrangements or pension.

Some of the interesting issues BIS is seeking input on in this first consultation include:

  • The minimum length of break between assignments which breaks continuity for the purposes of the 12 calendar week qualifying period.
  • The treatment of temporary workers where the employment agency pays them a retaining sum even where they are not actually employed on a job for a hirer.

So who will be the first port of call for a temporary worker seeking to enforce their rights? It is envisaged in the consultation paper that the first port of call will be the temporary agency who will be expected to have requested information to enable it to match the terms of the permanent employees of the hirer.

However, if it turns out that the hirer gave inaccurate information to the temporary agency then liability for loss will switch to the hirer. It is also intended to allow agency workers to pursue claims through employment tribunals.