Agency Workers

This month the government gave a clear indication that their draft legislation for 2008/9 will include an increased level of protection for agency workers. Their agreement with the CBI and the TUC means anyone working as an agency worker will be entitled to the same treatment for pay and benefits as if they are recruited directly.

Basic working conditions include such things as pay, hours of work, rest periods, holiday pay and sick pay. It is however important to distinguish between the rights and benefits acquired in this way and the statutory employment protection which exists for the benefit of non agency workers.

The right not to be unfairly dismissed and many other statutory employment rights exist for the benefit of employees, but excludes people who are employed through an agency.

Using agency workers can benefit both employers and workers when there are staff shortages due to holidays or parental leave. Agency staff are not permanent so they do not have a right not to be unfairly dismissed but equally, many people benefit from the flexibility which agency work can provide.

From a legal perspective, an agency worker has a contract with the agency and not with the “employer” or “end user”. At the same time, the agency’s contract is with the end user to provide the worker. Various attempts have been made to add to this a further contractual relationship between the employee and the end user. If successful, agency workers would gain the full range of employment rights available to normal employees.

If then the employer dismisses them they can claim unfair dismissal in the same way as an employee who has worked for an employer for 12 months or more.

To close the triangle in this way the Employment Tribunals would need to consider all the facts and decide whether, in reality, there is a direct relationship between the worker and the end user. This is called an implied contract in that it doesn’t have to be in writing, it simply reflects the practical reality.

A long running case came to a final conclusion earlier this year at the Court of Appeal when Ms James claimed unfair dismissal after working for Greenwich Council through an agency for 3 years. As a member of a permanent rota she was expected to turn up at the required times and wear a staff badge. As far as she was concerned she was fully integrated within the council’s organisation and considered herself to be a permanent member of staff. But the agency supplied her to the council and she continued to be an agency worker, In fact, at one stage she moved to a new agency for better pay whilst remaining with the council.

Ms James asked the Tribunal to consider her close relationship with the Council and the length of time which she had been working for them.

The tribunal looked at similar previous cases and decided that Ms James had no direct employment contract with the Council. To create such a contract there had to be mutual obligations between the employer and the employee. In other words, the employer must be obliged to provide work on a day to day basis and the employee must be obliged to do the work herself. In an agency situation, if a worker is not available, the agency can simply substitute another person. If you are an employee you have to turn up for work on a regular basis and cannot supply a substitute in your place.

It seems unlikely the Government will legislate to give Agency workers full employment protection and the Courts have made it clear that they will not change things that are a matter of government policy. 

For further information or advice, contact Caroline Mitchell

Published 27/05/2008. The author of this article is Caroline Mitchell