The government has set out its proposals for implementing the new EU Directive on agency workers. Consultation closes on 31 July and will be followed by consultation on draft regulations and guidance. The government still aims to introduce the legislation to parliament by the end of this parliamentary session, but is seeking views on when it should be brought into force. The latest possible date is December 2011.
The Directive requires agency workers to receive equal treatment compared with permanent employees in terms of working time provisions (hours, breaks, holidays) and pay, but leaves much of the detail to the Member States to determine. The UK government's proposals include:
- the protection will apply to workers supplied by an employment business to work at an end-user on a temporary basis, but not if they work through a personal service company, under a managed service contract or are genuinely self-employed
- workers will only be protected after working 12 calendar weeks at the end-user; the clock will be reset only by a break of a specified minimum of more than one week (views are sought on the appropriate length) or by a change to a substantially different role
- businesses can pay workers in lieu of contractual holiday entitlements in excess of the statutory minimum, rolled up with pay during the assignment or at its end
- pay will be defined as basic pay plus other contractual entitlements directly linked to the work undertaken eg, holiday pay, overtime pay, shift allowances, and bonuses related to individual performance such as piece-work bonuses. Other benefits such as pension are excluded (although note that agency workers will have rights to workplace pension saving from 2012 under separate legislation)
- the pay protection rights will not apply to workers employed by the employment business who are paid between assignments at a rate which is at least half that paid during their most recent assignment
- pregnant employees/new mothers will be entitled to paid time off for ante-natal appointments and to alternative work or paid suspension for the expected length of the assignment if there is a workplace risk to their health and safety
- the employment business will be liable for breaches save where they are due to inaccurate information provided by the end-user and the employment business took reasonable steps or best endeavours to obtain accurate details (in which case liability will pass to the end-user)
- workers will be able to bring claims in the employment tribunal; they will have a right to request written details about their equal treatment rights from the employment business and tribunals may draw an adverse inference from an inadequate response
- responsibility for certain rights applicable from day one of an assignment (eg, access to information about vacancies, to onsite facilities etc) will be the end-user's responsibility
- agency workers will count towards the thresholds for employee representation rights at the employment business, not the end-user.