Often the whole point of using agency workers is the flexibility which they give to the end-user to hire for short periods, for specific tasks, for particular expertise or simply to mislead HQ about FTE headcounts. They are “employees without tears”, to some extent at least.
That principle began to come unstuck through the Agency Worker Regulations and has now taken another knock in the form of the Parental Leave (EU Directive) Regulations 2013. From 8 March 2013, these Regulations will grant employed agency workers with at least a year’s service a right for the first time to request flexible working. This right will only apply on their return from unpaid parental leave. Prior to these Regulations, all agency workers were expressly excluded from the right to request flexible working by Section 80F of the Employment Rights Act 1996. The title of these new Regulations suggests that at least one such worker has rumbled that this may infringe the EU Parental Leave Directive.
At first sight, the rules for agency workers are reassuringly simple – all the usual steps apply in relation to the timetable for consideration of the flexible working application and the 8 specified grounds on which it can be turned down. The complicating factor is of course that whether any of the grounds apply and whether that timetable can be complied with are decisions which in practice lie elsewhere – not in the hands of the employing agency but in those of the end-user to which the individual is being supplied. In turn, the end-user is not bound by the flexible working rules as it is not the employer, so the supplying agency will have to do its best to justify its decisions about the viability of particular alternative working arrangements for which the grounds are either partly or entirely outside its knowledge. It is also possible that those grounds might not, if the end-user were itself the employer, form a legitimate basis for the rejection of the request. Does the agency have to reassure itself about the grounds for that decision or can it rely on a form of “some other substantial reason” – that if the end-user says the arrangement requested will not work, the agency is both bound by and entitled to rely upon that decision? After all, it cannot simply foist upon the end-user someone who cannot or will not do the hours which the client requires.
So in practical terms, how far an agency can go is dependent on the goodwill and/or contractual obligations of its client. If the agency can make it a contractual term that the end-user will only reject flexible working requests which it could legitimately have rejected if made by one of its own employees that would be good. If it would commit to providing written reasons for that rejection within two weeks, better still. However, do remember that the real sting in the flexible working regime is not the 8 weeks’ pay penalty possible under those Regulations, but the risk of a parallel indirect sex discrimination claim. If the end-user’s refusal of the agency worker’s flexible request is discriminatory in its effect and cannot be justified, whose liability is that? An agency with sufficient negotiating power might also seek an indemnity as part of its standard terms of business against circumstances where the end-user’s refusal to accommodate a flexible working request leads the agency into legal hot water.
Or maybe this is just a lot of fuss about not very much. Although it rather begs the question of why the Government has bothered with this at all, its November 2012 Impact Assessment suggests that employed agency workers returning from parental leave will make only a very small number of flexible working requests. Just how small does not become apparent until page 11 of the Assessment. Of an estimated 180,000 employed agency workers with a year’s service in the UK, the Government estimates an annual take-up for parental leave of about 3,250, and that flexible working would be requested on their return by no more than 35 of them. Are we really going to all the Parliamentary time and expense implicit in even minor statutory changes for the sake of 35 people?