Agency workers at BMW have some rights

The angry scenes at the Mini plant in Cowley may have left BMW employees fretting about their livelihoods, but they also graphically highlighted the legal no-man’s land occupied by agency workers when it comes to redundancy.

Figures from the Recruitment Employment Confederation show that more than 1.2 million workers were placed in temporary assignments in 2007 and 2008 – generating about £22.7bn for the recruitment industry. The research is called Implementing Equal Treatment in the UK, but is not yet on their website.

Agency workers have some rights in the UK, including the right to paid holiday, health and safety protection, and to be paid the minimum wage. They are due to acquire some more – including notice periods and redundancy pay – when the EU Agency Workers Directive comes into force. This could be implemented in autumn this year but will likely be delayed to 2011 because of arguments over its remit. Events such as the one at Cowley will intensify these arguments.

The directive, when it is applied, will apply two parallel employment relationships: a genuine one with the agency and a pseudo-employment relationship with the user body.

If applied as it stands, the directive will grant a set of rights after a 12-week period rather than as soon as an assignment begins a duality designed to separate the use of agency workers for genuine temporary cover, from the use of agency workers as a substitute for normal employees. Consequently, workers on long-term rolling contracts – such as some at Cowley – will enjoy some enhanced form of working rights once the directive is implemented.

The major downside is that this, in turn, may make agency workers far less appealing to business. Robin Chater, secretary-general of The Federation of European Employers, said it will “virtually destroy the use of agency staff to fill longer term positions”.

This is something the employment industry is keen to avoid. Just days before the Cowley lay-offs a coalition of the REC, CIPD, CBI and TUC met with employment relations minister Pat McFadden to try to delay implementation of the directive until the last possible legal date of 5 December 2011.

Minimum disruption

Speaking under the umbrella of the Agency Work Commission, the group detailed how the directive could be brought into UK law with minimum disruption by limiting the scope of equal treatment between agency and permanent staff to basic salary and other elementary statutory rights such as holiday pay.

This, the commission claimed, would make it easier for employers to establish the principle of equal treatment within an organisation and provide them with the maximum time to anticipate the changes, renew contractual arrangements and analyse UK-specific provisions.

“Trying to apply bonuses, gym membership or free lunches to someone only employed for 13 weeks will be impossible,” said Kevin Green, commission chairman and REC chief executive.

Yet not everyone has been convinced that deferring implementation is the right thing to do. Chater said business will benefit far more from a structured transition to prepare for the changes. “Obviously, it is not a good time to do this in the middle of a recession, but it should begin next year when the economy is hopefully pulling out of the present mire,” he said.

But regardless of the directive’s eventual implementation date, its most important step forward was actually taken last spring when the government, CBI and TUC agreed that agency workers should be entitled to equal treatment after 12 weeks. It is this acceptance of a moral principle that should have a more lasting effect than any period of deferment.

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