560:, with a small title change to emphasise "Equal Treatment" rather than "Prevention of Less Favourable Treatment". Identical in every way, save a tighter definition of employment agency and more provision for regulatory enforcement, it won the support of almost the whole Labour bench in the House of Commons. It was being heard in Committee each Wednesday morning as from 7 May. As of 21 May, the government said that it would table and move for Regulations. These passed (both Houses), received assent and became the Agency Workers Regulations 2010. They require a 12-week period of work before the rights to equal pay and time off begin.
511:, esp §622, and the UK has strong Takeover Regulation, especially Rule 21 of the City Code). The significant difference between the proposed Directive and the Bill is that governments, particularly the UK, managed to stipulate protections apply from 6 weeks of work in the Directive (equal treatment rights) per draft Art. 5(4). The first tabling of the Bill was undecided on this point, though more than one business consortium in the City of London called for one year of agency (or similar) work for a business to gain the protections.
329:
222:. They tried to form a union. They were dismissed. They claimed that this was unfair, and to do that, they had to show they were "employees" within the meaning of the unfair dismissal legislation. The word "employee" had hitherto always been taken to mean someone who is obviously not in business on his own account (i.e. not "self employed"), but recognised as subordinate labour, economically dependent on the employer. However,
477:). The way people demonstrate "unfairness" is to show that some pre-existing right has been breached. If an agency worker is not considered an "employee", then he will probably not be able to rely on the ERA 1996 rights which require it. So while the rights to equal treatment in the directive would be effective, agency workers would remain unprotected by almost every right in the ERA 1996.
348:, there would still exist no requirement of equal pay for agency workers who do work of equal value compared to a permanent employer. An agency worker can be treated less favourably in his or her pay and conditions than someone doing exactly the same job, simply because they come through an agency. A proposed
393:
which puts the directive's required rules in place. In fact, the proposed 2008 Bill was based on the directive, and serves as a very good guide indeed as to what any implementation will look like. All the essentials are identical. The core of the new law is to oblige employers to treat agency workers
767:
without prior authorisation. The UK Cabinet is believed to have abandoned support for the free market principle and, instead, formed an alliance with
Germany in return for its support in wrecking the Temporary Agency Workers Directive. "The Brits have sold the City down the river," a source close to
172:
In reality these requirements are not enforced, because there are minimal resources devoted to oversight. Regulation enforcement relies on individual workers bringing claims, and these claims are simply non-existent. There is no reported case of an agency worker claiming a breach of regulations. The
125:
The
Employment Agencies Act 1973 regulates the conduct of the 17,000 odd agencies operating in the UK. It prohibits most agencies charging upfront fees, makes it an offence to put out misleading advertising for jobs which do not exist, sets standards for assessing an employee's experience, and more.
309:
Under UK law, a contractor can be found caught by the tax initiative IR35, that is to say there is a virtual ("deemed") employment because that would be the case had the contract between worker and hirer been direct and the worker is then subject to extra taxes to compensate the government in that
301:
EWCA Civ 35 has held that a contract of employment only exists with the agency itself. A feature of this ongoing debate is that, despite the fact that court cases for the last five years have always found an agency worker to be an "employee" of at least someone, generally speaking, neither
858:
BA Hepple and BW Napier, ‘Temporary
Workers and the Law’ (1978) 7 Industrial Law Journal 84, arguing that the problem is that the worker is not deemed an employee of the agency, and this would be consistent with the fact that the agency exercises a ‘residuum of control’
514:
The
Directive included equal treatment only for pay, hours, parental rights and anti-discrimination (Art. 3(1)(d)). A significant omission therefore was any formulaic, fixed definition of minimum "reasonable notice before dismissal" enshrined in the UK by the
181:
ss 15-18. In a £26 billion industry with 17,000 agencies, in 2004 the
Inspectorate investigated 1,057 complaints, secured 8 convictions (solely in the entertainment industry, 2 agencies were banned for 10 years) and £5,735 in compensation for workers.
668:
763:, 19 May 2003. According to the report, "The Commission is hoping to have the Takeover Directive passed with Mediterranean support but Germany wants a compromise to strip the law of key articles that prevent management using takeover defences and
919:
104:
226:
argued that the waiters had no "mutuality of obligation" with the employer: they were not bound to accept work engagements when they were called up, and the employer was under no obligation to call them up. They could leave, or be fired,
422:) and importantly whom they should be considered "employees" of. Confusion in the courts has encouraged more claims, and has prevented the enforcement of clear rights. Agency workers have almost none of the main entitlements under the
900:
100:
539:
372:
government dropped its opposition. In fact, the directive and the Bill are almost identical. It is understood that the law will be passed, but with a 12-week wait before agency workers will be eligible for equal pay and hours.
310:
regard, yet he still has no apparent employment entitlements. This is partly because the Tax
Commissioners and the Employment Tribunals, and Tax and Employment Law, respectively allow for different treatments.
501:. Per newspaper reports, the UK got the backing of Germany to torpedo the draft Directive in return for the UK to help sink the Takeover Directive (Germany has comprehensive agency work regulation under its
940:
of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed- duration employment relationship or a temporary employment relationship.
356:(on gender, race, disability, religion, sexuality, age, part-time work, fixed time work and trade union membership). After the Bill's second reading, the proposal was dropped and an older draft of a
205:. If an individual is considered to be an "employee" then all the entitlements (such as a written statement of contract, reasonable notice before dismissal, time off for parenting, etc.) under the
736:
732:
433:
Right to written statement of contract (s 1 ERA, these two rights form the bedrock of individual labour law, since they were the first national minimum standards to be introduced in the
244:, held that "mutuality of obligation" was nothing to do with the promise of future work, but simply the exchange of work for a wage, and control over one's job by the employer in the
1101:
45:. Though statistics are disputed, there are currently between half a million and one and a half million agency workers in the UK, and probably over 17,000 agencies. As a result of
189:. It requires all agencies (commonly known as "gangmasters") which provide labour in the agricultural, shell fishing and food packaging sectors to operate under a licence. The
91:, which is the first transnational legal measure to ensure agency workers are treated equally. The Directive was the culmination of initial resistance by the Government under
708:
349:
323:
136:, ostensibly to increase efficiency. It abolished the system of agency licensing, so that agencies can operate freely, unless inspectors find violations and close them down.
96:
542:. It mirrored the Directive in all respects, save that there would be no 6-week qualifying period. In that period's climate, the Bill did not gain enough attention and was
1111:
469:
claim against an "employer", and the bill expressly provided in cl 4(2) that for this purpose both the agency and the end-user are employers. However, in an action for
662:
2 AC 173, "Is the person who was engaged himself to perform these services performing them as a person in business on his own account?" See also, per Lord
Denning MR,
60:
in many
Conventions called on member states to abolish them. However, the UK never signed up. The major piece of legislation which regulates agency practices is the
768:
the talks said. Britain has been fighting a desperate battle to prevent the introduction of rules that give temps the same employment rights as full-time workers."
497:). The latter was delayed these six years due largely to the UK government's consistent opposition to substantial agency working regulations – it preferred
888:
556:
pronounced it "doomed to failure for lack of support from the
Government". But no sooner as that had been said, almost exactly the same Bill was reintroduced by
381:
European directives have to be implemented by a UK law before they take effect in the country. This will mean that the UK government will either introduce an
861:
209:
apply. But the courts have often held that agency workers fall outside of this definition, because they lack "mutuality of obligation" in their contracts.
87:) which require, at least, equal pay and working time rights when compared with what a direct worker would be paid. This is designed to implement the EU
168:
require agencies to give a written statement of the pay and hours they will have, and state their contractual status (see the common law section below)
133:
65:
68:. This abolished licences, so agencies operate without governmental oversight, except for a small inspectorate and occasional court cases. After the
584:
174:
681:
353:
295:
IRLR 358 held that an agency worker would be the "employee" of the end-employer. But then a slightly differently constituted Court of Appeal in
361:
319:
185:
The
Gangmasters (Licensing) Act 2004 covers some of the lowest-paid workers in a more comprehensive way. It was introduced in the wake of the
974:
490:
865:
AC 1; also they raise the problem of unequal pay for equal work. They advocate a separate category for temporary workers, and note that the
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336:
was talked out in 2007. Almost identical, the new (Equal Treatment) Bill has had real support and success in Parliament when introduced by
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236:
186:
69:
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49:
and absence of statutory protection, agency workers have more flexible pay and working conditions than permanent staff covered under the
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It was introduced after similar (though stronger) legislation was passed in France and Germany regulating agencies (for Germany, see
534:). This included a promise of the government to support the European Directive. But by 2007, the government was yet to deliver, and
57:
609:
214:
193:
issues these (currently there are 1,159 licences) and it oversees and enforces standards requiring employees to be treated fairly.
943:
579:
434:
231:. Sir John Donaldson accepted this argument and deemed the waiters to fall outside of the scope of unfair dismissal legislation.
120:
84:
73:
274:
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should be followed. Agency workers were presumed to fall outside the scope of protective employment legislation. In 1997, when
190:
80:
240:
home-working ladies stitching flaps onto trousers were held to be employees within the meaning of the Act. The leading judge,
279:
426:. None of this is covered in the directive. That means agency workers may potentially be left without the following rights.
923:
904:
201:
The regulation of agency workers is affected by the interpretation by the courts of the word "employee" under s.230 of the
502:
127:
574:
418:
of the employer. The courts are of two minds about whether agency workers should be considered "employees" (under s 230
116:
61:
720:
407:
Discrimination law (though this is unnecessary because agency workers are already explicitly covered in existing laws)
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819:
see especially, this summary from Counsel for the employer who won the case, Jonathan Cohen at Littleton Chambers,
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345:
303:
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removed the power of the Lord Chancellor to decide on cases in this manner; it now being an incursion on the
997:
764:
724:
486:
241:
833:
473:, the claimant would need to show that an employer had (unsurprisingly) in some way acted "unfairly" (s 98
76:, requiring agencies (gangmasters) in the agricultural, shellfish and food packing sectors to be licensed.
1007:
820:
804:
494:
795:
615:
548:
531:
328:
297:
219:
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893:
56:
For most of the 20th century, employment agencies were quasi-legal entities in international law. The
960:
930:
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283:
458:
365:
245:
223:
178:
38:
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The Temporary and Agency Workers (Prevention of Less Favourable Treatment) Bill, introduced by
177:, has 15 inspectors and 4 call centre staff. This was increased by twelve inspectors after the
1075:
933:
on the state of the EU market from the European Confederation of Private Recruitment Agencies.
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527:
382:
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require agencies to document the health and safety standards of employers they send workers to
140:
1070:
1012:
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end-employers nor employment agencies regard themselves as the employer who is bound by the
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Current authority could be said to still be ambivalent. On the one hand, the recent case of
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1048:
853:
453:
Compensation from the government for lost earnings when an employer goes insolvent (s 182)
269:
866:
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to election victory, the approach to employment policy he brought was one of upholding
46:
42:
1095:
1063:
1053:
947:
695:
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17:
1038:
669:
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance
983:
543:
268:. The position of agency workers was reaffirmed when Derry Irvine was appointed
99:. The Regulations and the Directive are the third pillar of law, along with the
920:
Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002
748:
See E McGaughey, 'Should Agency Workers Be Treated Differently?' (2010) SSRN, 3
105:
Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002
852:
N Countouris, 'The Temporary Agency Work Directive: Another Broken Promise?'
553:
278:. He reasserted his view of "mutuality of obligation". It is notable that the
261:
257:
249:
92:
252:
had been arguing the exact opposite in the Employment Appeals Tribunal, that
141:
The Conduct of Employment Agencies and Employment Businesses Regulations 2003
1022:
901:
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
759:
757:
see, Carl Mortished, ‘UK turns against EU merger law in deal with Germany,’
441:
101:
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
540:
Temporary and Agency Workers (Prevention of Less Favourable Treatment) Bill
1043:
474:
462:
394:
and permanent staff equally in their contract terms, but only regarding
159:
withholding pay from workers, regardless of whether they have timesheets
132:). The 1973 Act was amended by the Conservative government through the
862:
Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd
552:
which further entrenched the subordinate position of agency workers,
873:
872:
E McGaughey, 'Should Agency Workers be Treated Differently?' (2010)
1080:
327:
956:
952:
352:
sought to adjust this position, joining another ten pieces of
34:
869:
had a six month work requirement that would’ve excluded them.
344:
Even if agency workers had any of the entitlements under the
737:
Equality in Employment (Sexual Orientation) Regulations 2003
733:
Equality in Employment (Religion or Belief) Regulations 2003
368:. This was possible for the first time in 2008 because the
457:
In cl 4(1) the Bill created a right to have access to an
272:, and he sat in on, and gave the leading judgement in,
248:. Before the case reached the Court of Appeal, a young
519:
s.86 and defined by subsequent case law (common law).
485:
The Bill largely implements the European Commission's
430:
Right to reasonable notice before dismissal (s 86 ERA)
218:. Some waiters worked various dinner functions in the
162:
charging any fees directly to a worker for their work
150:
sending workers to employers as strike breakers (r.7)
447:
Right to parental and paternity leave (in Part VIII)
411:
The bill does not protect agency workers from being
1031:
990:
709:
Temporary and Agency Workers (Equal Treatment) Bill
694:
nb: if the directive sets a deadline, it may have "
350:
Temporary and Agency Workers (Equal Treatment) Bill
324:
Temporary and Agency Workers (Equal Treatment) Bill
153:
sharing the agency worker's personal details (r.28)
97:
Temporary and Agency Workers (Equal Treatment) Bill
95:, and a final surge of Parliamentary support for a
777:for interesting discussion, see David Kershaw,
526:, the trade unions and the government made the
834:'Agency and temporary workers win rights deal'
465:. This gives any person the right to bring an
1102:Anti-discrimination law in the United Kingdom
968:
8:
143:. These regulations restrict agencies from,
64:, though it was slimmed considerably by the
802:; See the judgement by Elias J in the EAT,
698:", and this directive's deadline is in 2011
79:In January 2010, the Government passed The
975:
961:
953:
156:advertising jobs which do not exist (r.27)
1112:Employment agencies of the United Kingdom
134:Deregulation and Contracting Out Act 1994
66:Deregulation and Contracting Out Act 1994
27:United Kingdom Law of employment agencies
585:Employment Agency Standards Inspectorate
175:Employment Agency Standards Inspectorate
682:Nethermere (St. Neots) Ltd. v. Gardiner
600:
489:2008/104/EC which evolved from a Draft
404:Time off for parenting (for women only)
354:employment discrimination law in the UK
362:Temporary and Agency Workers Directive
320:Temporary and Agency Workers Directive
234:Not all judges took the same view. In
37:which regulates people's work through
491:Temporary and Agency Worker Directive
7:
524:2005 United Kingdom general election
450:Right to redundancy payments (s 135)
292:Dacas v Brook Street Bureau (UK) Ltd
237:Nethermere (St Neots) Ltd v Gardiner
187:2004 Morecambe Bay cockling disaster
70:2004 Morecambe Bay cockling disaster
729:Disability Discrimination Act 1995
25:
58:International Labour Organization
946:, implementing the Directive in
580:Gangmasters (Licensing) Act 2004
435:Contracts of Employment Act 1963
121:Gangmasters (Licensing) Act 2004
74:Gangmasters (Licensing) Act 2004
31:United Kingdom agency worker law
944:Agency Workers Regulations 2010
646:O'Kelly v. Trusthouse Forte plc
364:was revived, and passed by the
275:Carmichael v National Power plc
191:Gangmasters Licensing Authority
81:Agency Workers Regulations 2010
666:I.C.R. 590, at p. 596B; Also,
613:per Sir John Donaldson MR and
610:O'Kelly v Trusthouse Forte plc
546:. In the Court of Appeal case
530:(after its signing place, the
504:Arbeitnehmerüberlassungsgesetz
280:Constitutional Reform Act 2005
215:O'Kelly v Trusthouse Forte plc
129:Arbeitnehmerüberlassungsgesetz
107:to regulate atypical workers.
1:
391:European Communities Act 1972
212:The first important case was
779:'The Illusion of Importance'
575:Employment Agencies Act 1973
314:Securing equal pay and hours
147:selling other services (r.5)
117:Employment Agencies Act 1973
111:Employment agency regulation
62:Employment Agencies Act 1973
1032:Major Labour Hire Companies
991:Labour Hire by Jurisdiction
721:Sex Discrimination Act 1975
1133:
886:Agency workers regulations
660:Market Investigations case
424:Employment Rights Act 1996
346:Employment Rights Act 1996
317:
304:Employment Rights Act 1996
207:Employment Rights Act 1996
203:Employment Rights Act 1996
114:
51:Employment Rights Act 1996
1117:Public employment service
1107:United Kingdom labour law
499:labour market flexibility
266:labour market flexibility
72:, Parliament enacted the
590:Agency Workers Directive
358:European Union Directive
89:Agency Workers Directive
931:Powerpoint presentation
725:Race Relations Act 1976
632:, HC Hansard, 23.6.04,
487:Agency Worker Directive
401:Pay, including sick pay
139:Supporting the Act are
915:on Fixed term workers
805:James v. Greenwich LBC
398:Hours and holiday time
341:
896:on Part-time workers
796:James v Greenwich LBC
616:James v Greenwich LBC
549:James v Greenwich LBC
532:University of Warwick
442:flexible working time
331:
298:James v Greenwich LBC
220:Grosvenor House Hotel
658:per Cooke J. in the
628:HC Hansard, 5.7.05,
387:statutory instrument
284:separation of powers
18:UK agency worker law
711:cl 1 read with cl 5
459:Employment Tribunal
366:European Parliament
286:within government.
246:employment contract
224:Alexander Irvine QC
179:Employment Act 2008
39:employment agencies
918:Implemented under
899:Implemented under
544:talked out of time
342:
1089:
1088:
832:Patrick Wintour,
821:Judgement details
528:Warwick Agreement
440:Right to request
383:Act of Parliament
16:(Redirected from
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924:SI 2002/2034
905:SI 2000/1551
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984:Labour hire
800:EWCA Civ 35
522:Before the
416:at the will
1096:Categories
938:91/383/EEC
936:Directive
911:Directive
892:Directive
847:References
823:(19.02.08)
781:(2007) 56
634:col. 1455W
554:Mummery LJ
509:Civil Code
481:Background
389:under the
262:New Labour
258:Tony Blair
250:Tony Blair
197:Common law
93:Tony Blair
85:SI 2010/93
998:Australia
760:The Times
630:col. 284W
493:of 2002 (
1071:Randstad
913:99/70/EC
894:97/81/EC
564:See also
507:and its
475:ERA 1996
463:ERA 1996
1076:Recruit
1008:Namibia
685:ICR 612
649:ICR 728
444:(s 80F)
229:at will
41:in the
1039:Adecco
731:s 12;
360:, the
1081:Serco
1003:Japan
735:r 8;
727:s 7;
723:s 9;
596:Notes
413:fired
377:Scope
1044:Hays
874:SSRN
783:ICLQ
739:r 8.
707:see
607:see
322:and
260:led
119:and
103:and
785:267
517:ERA
420:ERA
35:law
1098::
922:,
903:,
836:,
306:.
53:.
976:e
969:t
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