Implementation of the Agency Workers Directive: Consultation on draft regulations
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 the anti-discrimination legislation in the workplace, and has considered 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. The 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 section below sets out the Commission’s response to the consultation questions that fall within its remit. Those questions that are not applicable to this remit have been omitted. The key points that we make are:
- We are still concerned about the equality impact assessment. Although it has been developed slightly since the first consultation, we do not feel that it is sufficient. The EIA needs to screen the policy adequately in order to identify which aspects are particularly relevant to equality and good relations, and to ensure that in implementing the directive the race, disability and gender equality duties, which apply to the Department for Business, Innovation and Skills, 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 are also concerned about the implications of the definition of a new type of ‘worker’ as set out in the consultation document and draft regulations. In our view the new definition gives a statutory legality to a relationship which is neither a contract of employment nor a genuine service contract.
- Whilst we are pleased that the draft regulations provide equal treatment in respect of working time and basic pay for agency workers after twelve weeks, we outline some concerns around rest periods, the definition of pay and the inclusion of bonuses and benefits.
- There is a risk that the proposed provisions on breaks and the commencement of a new qualifying period in the event of ‘substantially different work or duties’ is open to abuse. We do not believe that the Agency Workers Directive requires this interpretation. Furthermore, we feel it would be very difficult to define, monitor and challenge the rotation of agency workers in order to prevent them being afforded protection under the regulations.
- We are disappointed that the extension of health and safety provisions for agency workers who are pregnant or new mothers is proposed to take place only after the twelve week qualifying period. The Sex Discrimination Act prohibits less favourable treatment for agency workers from day one. There is already huge confusion about pregnancy and maternity legal requirements. To avoid further confusion the rights introduced by the regulations should start on day one.
- We are pleased that agency workers will have access to onsite facilities as a day one right. However, we recommend that the regulations further define what onsite facilities could be, including access to work clothes, health and safety equipment, training and social events. We also argue that the wording of the regulations should make clear that a desire to reduce or avoid costs should not be regarded as a genuine business objective in relation to these disallowing these rights.
- On establishing equal treatment, we consider that problems could occur due to the current wording on comparisons, and we explain our reasons for this. In addition, we feel that much greater detail will be needed on how to identify permanent employees doing ‘broadly similar’ work, especially in industries with strong occupational segregation by gender or nationality.
- We reiterate our recommendation that liability for breaches of agency workers’ rights in relation to working and employment conditions should rest with both the agency and the hirer, because of the nature of the relationships between agency worker, agency and hirer, and the difficulties agency workers experience when trying to enforce their rights.
- We are disappointed that the onus remains on the agency worker to request written information on equal treatment. There is no reason why the initial contract between agency and worker should not state that if the worker’s assignment with one company last for twelve weeks or more they will be entitled to equal treatment, along with an explanation of what equal treatment means and an explanation of the procedure they would have to follow to safeguard their equal treatment.
- Finally, we do not feel that the approach to dispute resolution set out in the consultation document is the most effective way to provide access to justice for agency workers. Due to the vulnerable nature of much agency work, extra efforts are needed to ensure that agency workers are aware of their rights and that taking action to assert them is a realistic prospect. We make some suggestions that we feel would help to make this possible.
Download the full consultation response (Word)