March 18, 2010
At present, temporary and agency workers do not enjoy the same employment rights as directly employed members of staff. However, the EC Temporary Agency Workers Directive (No.2008/104) is due to come into force in the UK on 1 October 2011 and will make substantial changes to businesses because after 12 weeks of employment, temporary and agency workers will have equal rights to permanent staff.
These rights include remuneration, paid holiday, working hours, overtime, maternity provisions and anti-discrimination provisions.
As mentioned above, the equal rights will not commence until the worker has undertaken the same role with the same business for 12 continuous calendar weeks. The Regulations do provide detail to define “same role” in order to prevent employers from abusing this provision by moving workers around. A completely separate assignment would have to commence which would be “substantially different” to the previous one.
In order to break up the 12 week qualification period, the worker would have to have a break of at least 6 calendar weeks. If the worker is on sick, this will not count as the break period or qualification period so long as less than 28 weeks have been taken off sick. The same applies to holiday, maternity, paternity and jury service.
There are rights expressly provided in the Regulations which are available to employees from the beginning of the assignment and not just after completion of the 12 week qualification period. These are the right to be informed of vacancies within the organisation, and to enjoy onsite facilities such as canteen, childcare and transport services.
A consequence of the Regulations for work agencies is that they will be liable if they are responsible for the breach of the worker’s employment rights, but may have a defence if they take reasonable steps to providing the worker with information about the hirer. Likewise, hirers will be liable if they are responsible for the breach.
In conclusion the Regulations will provide large changes to businesses which will need to prepare in advance before the Regulations come into force.
For further information please contact Carol Shaw, Employment Law Department, on 01295 204140 or email cshaw@se-law.co.uk
