authors
Christopher Hitchins | Partner, London
Ashley Brown | Associate, London
Lorene Caby | Associate, London

Introduction
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.

Key Provisions of the Directive

• The 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
  end user.
  


• Working 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.
  


• Member 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.
  


• Restrictions 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).
  


• Temps must be told of vacancies in the end-user workforce to give them the opportunity to find
  permanent employment.
  


• End-user entities will also be required to provide temps with:
  
  
  • Access to amenities and collective facilities (for example, the workplace cafeteria).
    
  
  
  • Improved access to training and childcare facilities (even in periods between their assignments) to enhance career development and employability.
    
  
  
• However, 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.
    
  
  
  • Where 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.

What 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.

In 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 consultation.

The Next Step in the UK?
Following 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.

The 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 of "equal treatment" should be established, who should be liable for compliance with obligations under the Directive, and dispute resolution.