Hitchins | Partner,
Brown | Associate,
Caby | Associate,
In our LawFlash
on 28 October 2008, we reported that the European
Parliament had approved the Temporary Agency Workers Directive
2008/104/EC (the Directive) whereby temporary agency workers (temps)
will be entitled, from the commencement of their employment, to
the same treatment as permanent employees as regards their terms
and conditions of employment such as pay, working hours, and holidays.
The UK Government is now consulting with interested parties on
the proposed new legislation and affected businesses in the UK
may give their comments to the government if they wish.
Provisions of the Directive
working and employment conditions of temps must, from the commencement
of their assignment at an end user, be at least the same as those
that would apply if they had been recruited directly by that
and employment conditions are defined as those conditions that
relate to the duration of working time, overtime, breaks, rest
periods, night work holidays, public holidays, and pay, although
an individual Member State may introduce legislation which covers
a wider range of working and employment conditions if it wishes.
States must specify whether occupational security schemes (including
pension, sick pay, or financial participation schemes) are included
in the definition of basic working and employment conditions.
The Directive does not give temps the right to contractual maternity
pay or sick pay.
on the use of temps imposed by national governments will only
be possible on the grounds of general interest (for example,
health and safety reasons).
must be told of vacancies in the end-user workforce to give them
the opportunity to find
entities will also be required to provide temps with:
to amenities and collective facilities (for example, the workplace
access to training and childcare facilities (even in periods
between their assignments) to enhance career development and
individual Member States may:
Use agreements with unions or employee representatives (collective
agreements) to establish arrangements concerning the working and
employment conditions of temps which, while respecting their overall
protection, differ from those highlighted above.
it is not practicable to have a collective agreement, establish
arrangements concerning the basic working and employment conditions,
so long as there is adequate protection for temps. This provision
allows Member States to include a qualifying period before
such equal treatment will apply. Although there are only
a limited number of examples where an EU member state has
been permitted to introduce a qualifying period, the UK Government
reached agreement at a national level in May 2008 with unions
and employer organisations so that the equal treatment of
temps will not apply until such workers have been employed
at the end user for at least 12 weeks.
Does This Mean for the UK?
Member States have a certain degree of latitude when implementing the Directive into national legislation. The UK Government has reached an agreement with unions and employer organisations (the Trade Union Congress and the Confederation of British Industry) whereby the equal treatment of temps will not apply until they have been employed at the end user for at least 12 weeks, whereas the Directive states that the equal treatment should ordinarily apply from the commencement of employment with the end user.
When Will This Come into Force?
When approved in October 2008, the Member States had up to three
years to implement the Directive.
the UK, the legislation implementing the Directive has been drafted
and debated in the UK Parliament, and in May 2009 the UK Government
published a consultation paper on proposals to implement the Directive
in England, Scotland, and Wales. Implementation of the Directive
in Northern Ireland is to be subject to separate legislation and
The Next Step in the UK?
the policy consultation that took place earlier this year, the UK Government
published a summary of responses to the first consultation and has
now issued a future consultation on draft regulations by which it proposes
to implement the Directive in the UK. Member States have until 5 December
2011 to implement the Directive. The UK Government is intending that
the new law will come into force in the UK two months before this date,
in October 2011.
new consultation in the UK sets out the way in which the UK Government
now intends to proceed, and also seeks comments on the draft regulations.
The consultation window closes 11 December 2009. It further requests
views on key elements of the UK Government’s proposed approach,
such as who should be covered by the Directive, how pay should
be defined, holiday entitlement, duration of working time, the
implementation of the 12-week qualifying period, how the principle
be established, who should be liable for compliance with obligations
under the Directive, and dispute resolution.