Blake Lapthorn solicitors' Recruitment sector group look at the proposals under The Temporary (Agency) Workers Directive at a seminar in November 2008

1. The Temporary (Agency) Workers
Directive 2008 – how will it affect users
of temporary workers?
Presented by Frances Lewis, Partner,
Recruitment sector group,
Blake Lapthorn
26 November 2008

2. Agenda
Introduction
Where are we now?
What rights will "agency workers" have?
What type of temporary worker will be covered?
How will end users be affected?
Ways around the new legislation
Conclusions

3. Introduction
European Social Agenda since early 1990s
Underlying objective – basic equal rights for all types
of worker
May 2008 – TUC/CBI "deal" = secured right to
derogate from Directive
October 2008 – TAWD becomes European law

4. Where are we now?
No going back = EU law
Implementation in UK = new regulations by October
2009?
CBI focussing on delaying implementation

5. What rights will "agency workers" have?
12 week qualifying period – part of CBI "deal"
Principle of equal treatment
Same "basic working conditions" as comparable
permanent employee
"basic working conditions" = pay, working time,
holiday and sick pay BUT
Occupational benefits excluded = occupational sick
pay, pensions

6. What rights will "agency workers" have?
Continued….
Notice of permanent vacancies – notice board?
Intranet site?
Access to amenities – canteen, childcare facilities,
transport facilities
"agency workers" count for purposes of collective
consultation
BUT
Position re contractual maternity/paternity benefits
unclear
How will "pay" be assessed?
What if there is no obvious comparator?

7. Who is an "agency worker"?
Directive defines as a worker,
"with a contract of employment or employment relationship
with a temporary agency, who are assigned to user
undertakings to work temporarily under their supervision
and direction."
How will this translate into the UK regulations?
Aimed at "PAYE temps"
Does NOT appear to include limited company contractors or
other "self-employed" workers, e.g., interim managers,
freelancers etc
Andrew Miller, MP has assured recruiters that "professional
contractors" will not be caught

8. How will end users be affected?
Widely reported concerns that equal "pay" requirements
will lead to increase cost
Agencies and end users will need to assess who is caught
and who is not
Agencies will have to request "comparator" information –
commercially sensitive?
At what stage will comparator information need to be
provided?
Not yet clear how compliance will work in practice
What about temporary workers already under contract?
More "churn"

9. Ways around the new legislation
Limit assignments to less than 12 weeks – NB anti
avoidance measures
Use of limited company contractors?
Engaging temporary workers on "project" basis
without end user "supervision or direction"
"Swedish derogation" – employed contractor model
Workplace and collective agreements

10. Conclusions
Now EU law
UK regulations have yet to be finalised
A lot of hype and scaremongering out there – unlikely
to apply to all temporary workers
Don't panic – hold tight until draft UK regulations are
published
Speak to agencies about possible "work arounds"
Identify which, if any, of your temporary workforce is
affected
Keep an eye on updates in early 2009

11. The Temporary (Agency) Workers
Directive 2008 – how will it affect
users of temporary workers?
Presented by Frances Lewis, Partner,
Recruitment sector group,
Blake Lapthorn
26 November 2008