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Agency worker or temp?
Archived article dated Friday May 2nd 2008
In light of recent Government discussions, Audrey Williams, head of discrimination and diversity at international law firm Eversheds discusses possible changes to temporary workers' rights.
Agency worker or temp? An agency workers' placement with a business may be for any amount of time - often the placement is for a short period, hence the use of the term 'temporary worker' or, simply, 'temp'. Of course, the placement could be for many months or years. Often if the individual is supplied by a third party the expression 'agency worker' is more fitting.
Employment legislation gives agency workers some statutory rights, including statutory minimum holiday, the right to a national minimum wage and importantly discrimination rights. A true agency worker cannot acquire the right to redundancy pay or statutory sick pay, or claim unfair dismissal. These rights are reserved for employees, who are workers with direct responsibilities to their employer.
When are so-called agency workers deemed to be employees? In the recent case of James v Greenwich Borough Council, the Court of Appeal held that an agency worker is in reality an employee, where, on the facts of a given case, it is necessary to imply a contractual relationship between the worker and the business. This means if the contracts between the agency worker and the agency, and between the agency and the business do not provide an adequate framework for the working arrangements of the agency worker or do not encapsulate the agency worker's rights and responsibilities vis-à-vis the business, then a contract should be implied between the agency worker and the business. For example, if the agency worker agreed, directly with the business, different working hours than had been agreed with the agency, then one may well have to imply a contract between the agency worker and the business to make sense of the arrangements.
If the contractual arrangements between the agency, the agency worker and the business are drafted carefully and with full regard to the anticipated situation on the ground, the agency worker ought not to acquire employee status.
Where now? The UK press has reported a recent shifting attitude in the Prime Minister, Gordon Brown, who previously showed little enthusiasm for enhanced rights for agency workers. Mr Brown called for the setting up of a government commission which will look at the status of agency workers and make recommendations later this year. Whilst the UK has been resistant to EU efforts to strengthen the rights of Agency Workers, recent announcements suggest a deal may be under consideration in the future. Until we know the detail it is difficult to predict what this will mean but based on EU discussions last year, it seems the plan is for Agency Workers to be given equal rights ( in terms of pay and benefits ) with those permanent employees in the organisation for whom they work.
Tagged as: temporary workers | legal | legislation
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