In this year’s Queen’s speech the Government announced it will in the next parliamentary session, “legislate to provide agency workers with the right to be treated equally with permanent staff on pay, holidays and other basic conditions” and Adams & Remers solicitors is urging employers of all sizes to start to consider the implications this may have on their business.

This announcement ties in with the requirement of a European directive on agency workers passed in December 2008 which the UK government has until 5 December 2011 to implement. This EU directive provides the "basic working and employment conditions" of temporary agency workers shall be at least those of an employee in the same undertaking occupying the same job.

The directive does clarify that basic working and employment conditions means conditions relating to the duration of working time, overtime, breaks, rests, night work, holidays and public holidays, and pay. The directive does not give the agency workers any protection in terms of unfair dismissal, notice period or the right to a redundancy payment.

Following consultations the Government has held it has indicated these proposed changes will apply to agency staff working for 12 weeks or more.

So how is this likely to affect employers and agencies?

• In many cases, especially where an agency worker is engaged for a particular one-off project, there may be no obvious permanent employee comparator. In these circumstances, it will be difficult to identify what the worker will be entitled to by way of equal treatment.

• The 12 week qualifying period may lead to a regular turn-over of agency staff and gaps between periods of assignment, in order to avoid the rules on equal treatment. The UK implementing legislation is likely to contain provisions clarifying how long a break between assignments will amount to a break in continuity for an agency worker.

• There is no clear definition of who an agency worker is and there is some debate as to whether this would extend to workers whose services are supplied through a limited company. It is likely, however, that such workers will be exempt, as higher paid contractors.

• It seems that the compliance burden will fall on agencies rather than end users and that any breach of the new law will be actionable by the worker against the agency.

In order for the agency to comply with its obligations, it will require full information from the end user about the pay and benefits of comparable permanent employees. End users may not be able to regularly notify the agency about any subsequent changes in the working and employment conditions of comparable permanent employees. In any claim which subsequently arises, the worker may name both the agency and the end user as a respondent to the proceedings.

The terms of the contract between the agency and the end user may then become relevant. The end user should be careful to ensure that it does not enter into any draconian warranties and indemnities regarding the provision of information about its staff which may cause them to bear both theirs and the agency’s costs of defending an employment claim.

Amy Richardson, solicitor at Adams & Remers comments: “For employers it is very much when not if these measures are introduced, so planning early for their impact is very important. This will affect some industries much more than others but it is something every company owner should be aware of”.