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The Agency Worker's Directive (AWD) is already EU Law and the UK has until the 5th of December 2011 to implement it. However the TUC has made a resounding plea to enact the legislation in to full force by April 2010. It is speculated that the government might now rush through the legislation to keep unions onside before next year’s general election?!

The aim of the Directive is to give temporary agency workers the same basic working conditions as those on permanent contracts.

There are currently around 1.3 million agency workers on temporary assignments across the UK in a range of public and private sector roles.

The Directive defines an Agency worker as one “with a contract of employment or employment relationship with a temporary agency, who is assigned to user undertakings to work temporarily under their supervision and direction”. Hmm?

This seems to be aimed at PAYE temps and does not appear to include:

Limited company contractors

Self employed workers such as Freelancers

Agency workers working on managed service contracts because this is a form of sub-contracting, the workers are employees of and supervised by the Agency.

Characteristics of agency workers that will be covered by the Directive are as follows:

Where the worker works for a variety of companies on different assignments but the temporary agency pays his/her wages direct, deducting tax and NI before paying their salary.

The contract of employment is with the temporary agency although he/she works under the day to

day supervision of a Manager where they are assigned.

The worker sends time sheets to the Agency who in turn pay for the hours actually worked.

If the worker is sick or takes annual leave, the Agency pays SSP or holiday pay.

The Directive does provide a qualifying period before the right to equal treatment applies. The qualifying period is 12 weeks employment. It is proposed that this will be 12 calendar weeks regardless of working pattern.

It is proposed to prevent abuse of this that a minimum break between assignments in the same job will be set after which the qualifying period would begin again. At the moment there is no view of how long the minimum break period will be but it is suggested that the new qualifying period will only begin if a new assignment with the same employer is substantially different.

After 12 weeks employment, temporary agency workers will be entitled to receive the same equal treatment as permanent staff including:

Pay

Holiday and Sick Pay

Benefits - such as discounts for staff canteen, discounts for gym or sports facilities

Travel allowances, season ticket loans, taxi fares home

Flexitime, lunch and coffee breaks

Medical/ Dental insurance and care

Childcare facilities – crèches, paid time off

Occupational benefits such as occupational sick pay and pensions are not included in the Directive.

Other key points in the Directive include the following:

Agency workers must be informed of any permanent vacancies that arise at the Employer.

Agency Workers should not be restricted from taking up a permanent post at the employer once the temp contract ends (although agencies will be able to charge a “reasonable” fee.

It is proposed that primary liability for compliance with the Directive will rest with the Agency. It is acknowledged that the Agency will obviously be reliant on information from the end user. Therefore Agencies will have a reliable defence if they had taken “reasonable steps” or made “reasonable endeavours” to obtain information from the end user.

Possible ways in which agencies might try to limit the effect of the Directive include the following:

Limit assignments to 12 weeks only so the qualifying period does not apply.

Use Limited Company Contractors as the Directive does not seem to apply to them.

Engage Temporary workers on a “project” basis without end users “supervision or direction”.