Agency workers in the UK currently have few rights, as they are not employees under employment legislation. The chief remedy from which this bars them is that of unfair dismissal – there have been some well known cases involving workers having no rights on losing a job they’ve performed for some years in a manner more or less identical to an employee. The most well known of these was perhaps Mrs Dacas; the poor woman worked for four years cleaning for Wandsworth Council, through Brook Street Bureau agency, and got absolutely nothing when she was sent packing for querying her holiday pay and an isolated incident of rudeness. No investigation, no dismissal process, no pay-off, just a withdrawal of work. It was the judgment in that case that set the cat amongst the pigeons.
Employers’ groups see the short-termist hire-and-fire nature of agency work as vital to many businesses’ flexibility and operation, whereas other groups are concerned over reports of widespread exploitation.Â Several attempts have been made to imply employment relationships into the traditional tripartite agency/employer/worker relationship, but they have failed. The Court of Appeal case of James leads the way, and has been applied robustly since.
Legislation is now moving to fill the gap, but only after a huge amount of negotiation at a domestic and European level. The government reached an agreement in May with the TUC and CBI that agency workers would gain equivalent rights to employees, but only after 12 weeks’ service. The problem was that rights for agency workers was an approaching storm in Europe as well, and the government managed to broker a deal where it said yes to the Agency Workers Directive, subject to the 12 week qualification, and (separately) the retention of the right of UK workers to opt out from the 48 hour working week. This latter exception for the UK – most of Europe having 48 hours as an unalterable maximum – is of great political sensitivity. The notion of a maximum working week is anathema to British employers, and I would say anecdotally many of its employees too. It just seems a bit, well, French.Â
The agency worker directive presently exists only as European Law – the full copy is available here, and must be implemented by UK legislation. There is currently no word as to when this will happen.