United Kingdom agency worker law
As a result of judge made law[1] and absence of statutory protection, agency workers have more flexible pay and working conditions than permanent staff covered under the Employment Rights Act 1996.
This abolished licences, so agencies operate without governmental oversight, except for a small inspectorate and occasional court cases.
The Directive was the culmination of initial resistance by the Government under Tony Blair, and a final surge of Parliamentary support for a Temporary and Agency Workers (Equal Treatment) Bill.
It prohibits most agencies charging upfront fees, makes it an offence to put out misleading advertising for jobs which do not exist, sets standards for assessing an employee's experience, and more.
It requires all agencies (commonly known as "gangmasters") which provide labour in the agricultural, shell fishing and food packaging sectors to operate under a licence.
The Gangmasters Licensing Authority issues these (currently there are 1,159 licences) and it oversees and enforces standards requiring employees to be treated fairly.
The regulation of agency workers is affected by the interpretation by the courts of the word "employee" under s.230 of the Employment Rights Act 1996.
If an individual is considered to be an "employee" then all the entitlements (such as a written statement of contract, reasonable notice before dismissal, time off for parenting, etc.)
Sir John Donaldson accepted this argument and deemed the waiters to fall outside of the scope of unfair dismissal legislation.
In Nethermere (St Neots) Ltd v Gardiner[5] home-working ladies stitching flaps onto trousers were held to be employees within the meaning of the Act.
The position of agency workers was reaffirmed when Derry Irvine was appointed Lord Chancellor, and he sat in on, and gave the leading judgement in, Carmichael v National Power plc.
On the one hand, the recent case of Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358 held that an agency worker would be the "employee" of the end-employer.
But then a slightly differently constituted Court of Appeal in James v Greenwich LBC [2008] EWCA Civ 35 has held that a contract of employment only exists with the agency itself.
Under UK law, a contractor can be found caught by the tax initiative IR35, that is to say there is a virtual ("deemed") employment because that would be the case had the contract between worker and hirer been direct and the worker is then subject to extra taxes to compensate the government in that regard, yet he still has no apparent employment entitlements.
A proposed Temporary and Agency Workers (Equal Treatment) Bill sought to adjust this position, joining another ten pieces of employment discrimination law in the UK (on gender, race, disability, religion, sexuality, age, part-time work, fixed time work and trade union membership).
It is understood that the law will be passed, but with a 12-week wait before agency workers will be eligible for equal pay and hours.
The latter was delayed these six years due largely to the UK government's consistent opposition to substantial agency working regulations – it preferred labour market flexibility.
But by 2007, the government was yet to deliver, and Paul Farrelly MP introduced the Temporary and Agency Workers (Prevention of Less Favourable Treatment) Bill.
In the Court of Appeal case James v Greenwich LBC[12] which further entrenched the subordinate position of agency workers,[13] Mummery LJ pronounced it "doomed to failure for lack of support from the Government".
Identical in every way, save a tighter definition of employment agency and more provision for regulatory enforcement, it won the support of almost the whole Labour bench in the House of Commons.
