The European Union’s new directive on temporary agency workers is poised to enter British law towards the end of 2009, after six years of consideration.
The directive aims to replace the widely different sets of rules which exist across the 27 EU member states.
Among the changes, employers will need to provide temporary agency workers with similar conditions to their directly-recruited counterparts.
Broadly speaking, the directive applies to individuals employed by an agency, but who are then assigned to work for a period with the “end user” organisation.
This could simply be for a matter of weeks, but, in many instances, agency “temps” have been found to work with the same end user for many years.
This can result in a two-tier workforce, in which workers hired directly by the end user receive different pay and benefits to those supplied by agencies.
Once implemented, the new regulations will require organisations using temporary agency workers to give them at least the same basic conditions as they would have received, had they been recruited directly to do the same job. This principle of “equal treatment" will only come into force once a temp has been in post for 12 weeks, thanks to an agreement brokered between the UK Government, the TUC and CBI.
The new rules prompt questions over how, why and when businesses should engage such workers.
It will be important to consider the impact of equal rights relating to pay and working time, including weekly limits, rest periods, night work and holidays.
On the question of pay, agency temps will not be entitled to equal treatment if they have a permanent employment contract with their agency and continue to be paid at certain level – which is yet to be set – between assignments. Organisations are expected to review their supplier arrangements and renegotiate these over the coming months.
Temps who have been paid more than their directly employed colleagues can continue to do so, as the directive requires conditions to be “at least” those of a direct hire.
This is most often the case for professional contractors, who would not be considered among the vulnerable workers this new legislation sets out to protect.
Staff training arrangements may also need to be reviewed, as the directive requires EU member states to improve temporary agency workers’ access to training, even between assignments. Under the proposals, temps will need to be told of permanent vacancies within the business, as is the case with fixed-term employees.
Particularly for businesses operating across EU member states, there are clear benefits to having rules which are aligned throughout the union. But the new regime will also present a challenge to any organisation which relies on temps as part of its staffing mix. It will be possible to balance flexibility and fairness, if employers take the time to understand the new rules and how they will affect current practices.
Chris Phillips is a member of the employment, pensions and benefits team of law firm Maclay Murray and Spens in Aberdeen