The Commission responded to the consultation from BERR/BIS on the Implementation of the Agency Workers Directive that was open between May and July 2009.
The Commission welcomes the introduction of minimum protection for temporary agency workers. The need for minimum standards principally applies to those workers whose insecure employment position makes them vulnerable, particularly when combined with factors of low pay, lack of English language skills, pregnancy, age, disability and other factors. In responding to this consultation the Commission has drawn on its knowledge as the regulatory body responsible for compliance with anti - discrimination legislation in the workplace and recently published research looking at vulnerable workers, including agency workers.
We recognise that agency working provides benefits and flexibility for some agency workers, but our experience suggests that these workers are likely to be those who do not require the protection of minimum standards, because they tend to be relatively higher paid and skilled. These regulations are critical for low-paid agency workers who are subject to substantial levels of vulnerability and who would overwhelmingly prefer the security of direct employment. Their vulnerability largely centres on their status as workers without job security or control over working hours allocated to them.
In implementing the Directive it will be important to consider the full range of experiences of agency workers with protected characteristics. In the final section of our response we discuss the need for a thorough equality impact assessment of the Directive’s implementation in order to consider these factors.
The key points that we make are:
- We are concerned about the current version of the equality impact assessment. We make several recommendations that will help to ensure that the next assessment screens the policy adequately to identify which aspects are particularly relevant to equality and good relations, and that in implementing the directive the race, disability and gender equality duties are complied with. A comprehensive EIA will allow implementation to take appropriate account of the particular experiences and needs of many vulnerable agency workers.
- We stress the need for strong anti evasion measures. Attention will need to be paid to the definition of ‘worker’ in order to address the possibility of bogus self employment. The way that any minimum break period and change of responsibilities are defined will also need to consider how to avoid circumvention of the Directive’s objectives. It will be vital to monitor the impact of the regulations on, for example, the turnover of agency staff, in order to monitor and trends towards evasion by dismissing or transferring workers.
- On pregnant women and new mothers, we recommend that any additional rights not already provided by the Sex Discrimination Act should begin from day one, and that measures taken as a result of a health and safety risk should last for the length of the pregnancy.
- We argue that it is essential that liability for compliance with obligations under the Directive rests with both the hirer and the employment business. This is because of the nature of the relationships which the agency worker, the agency and the hirer have to each other, and the difficulty agency workers experience in trying to enforce their rights.
- The onus for finding out information about the rights of agency workers should not fall solely with the workers themselves, and we make recommendations about action to provide information to workers as soon as they commence employment.
- On dispute resolution, we recommend a flexible approach rather than the agency being the first port of call for workers’ complaints. We suggest a number of options that would help to decrease agency workers’ fear of victimisation or dismissal if they assert their rights.
- We make several comments on legal definitions; including those on worker, pay and benefits, given job, equal treatment and comparators.
Download our response in full (Word)