Agency Workers and Equal Treatment - Private members' Bill seeks to provide employment rights equivalent to direct workers

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21 February 2008

The Temporary and Agency Workers (Equal Treatment) Bill is a private members' Bill, sponsored by Andrew Miller, Labour MP for Ellesmere Port and Neston. The Bill had its First Reading in the House of Commons on 5 December 2007 and its Second Reading is scheduled for 22 February 2008. The Bill is described as

"A Bill to provide for the protection of temporary and agency workers; to require the principle of equal treatment to be applied to temporary and agency workers; to make provision about the enforcement of rights of temporary and agency workers; and for connected purposes."

Private Members' Bills are Public Bills introduced by MPs and Lords who are not government ministers. As with other Public Bills, their purpose is to change the law as it applies to the general population. They have to go through all Parliamentary stages but, as relatively little time is allowed for their consideration, most private members' Bills never become law. This Bill is similar to the Bill that was sponsored by another Labour MP in December 2006 but which ran out of time in the last Parliamentary session.

The provisions of the Bill have obvious similarities to the "prevention of less favourable treatment" legislation for part-time workers and fixed-term employees. Less favourable treatment for those workers and employees is determined by identifying, respectively, "comparable" full-time workers and "comparable" permanent employees.

The same approach is proposed for temporary and agency workers - they should be treated not less favourably than "comparable" direct workers. A "direct worker" is a person who is not an agency worker and who is either

• an employee working under a contract of employment, or
  
  
• a contractor working under a contract for the provision of services other than as a self-employed worker.

Agency workers are workers who are supplied under a contract between an employment business or employment agency and an end user. Less favourable treatment would be identified by comparing the "basic working and employment conditions" provided for an agency worker and those provided for a direct worker. The direct worker would have to be a person, temporary or otherwise, who is

• employed by the same end user at the time the alleged less-favourable treatment takes place,
  
  
• performing broadly similar work with, if relevant, similar seniority, qualifications and skills, and
  
  
• based at the same establishment or, if there is no direct worker at the same establishment, a different establishment.

If no comparable direct worker exists, a tribunal would have to draw a comparison with how a notional direct worker would have been treated, taking relevant factors into consideration.

A worker's "basic working and employment conditions" would be conditions relating to

• the duration of working time, rest periods, night work, paid holidays and public holidays,
  
  
• pay, including sick pay
  
  
• work done by pregnant women and nursing mothers, children and young people, and
  
  
• action taken to combat discrimination on the grounds of sex, race or ethnic origin, religion or beliefs, disabilities, age or sexual orientation.

Treatment of an agency worker would only be "less favourable" if

• it is on the ground that the worker is an agency worker, and
• it is not justified on objective grounds.

However, treatment would not be "less favourable" if it could be shown that the "pro rata temporis principle" applies, i.e. the difference in pay and benefits is in proportion to the hours worked by the agency worker and the direct worker.

Agency workers would have to be provided with information by the end user of any vacancies for work as a direct worker and any clause in the contract between the agency and the end user that would prevent an agency worker becoming a direct worker of the end user would be void. Agency workers would be protected against dismissal, or action short of dismissal, for exerting, or intending to exert, any right under these provisions. There would be the right for an agency worker to make a complaint to an employment tribunal and, in the case of alleged dismissal, both the agency and the end user would be deemed to be the employer and have joint and several liability for any award of compensation.

...UK Payroll News - Latest

Sources:
Temporary and Agency Workers (Equal Treatment) Bill

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