(1) Temporary agency workers

The draft EU directive on temporary agency workers foreshadowed in recent press reports (see e-mail update of 8th March 2002) has now been published. The draft directive would give temporary agency workers a right to be treated no less favourably than comparable workers in the business where they are placed in relation to seniority in the job and "basic working and employment conditions" (defined as working time, rest periods, night work, paid and public holidays; pay; work done by pregnant women, nursing mothers, children and young persons; and action to combat discrimination). Under the terms of the draft directive, the right to non-discrimination would come into effect after the worker had been assigned to the same undertaking for 6 weeks. The DTI is to press Brussels to extend this to 12 months. Exceptions are possible where:

  • objective reasons exist, justifying the difference
  • where temporary agency workers have permanent contracts with their agency under which they are paid even on those days not assigned to a client, or
  • where collective agreements stipulate an adequate level of working conditions for temporary agency workers.
A comparable worker will be one occupying an identical or similar post taking into account seniority, qualifications and skills.

There will also be an obligation to provide information about vacant permanent posts. Restrictions on the client recruiting the agency worker for a permanent post will be null and void as will any related agency fees charged to the worker. Agency workers are to be given access to the social services of the client and access to training organized by the client and agency.

This controversial proposal clearly could have a significant impact on the costs and therefore use of agency workers. Temporary agency workers are contracted to the agency rather than the client and therefore rarely have the same salary and benefits as the client's permanent staff. The Commission's proposal follows the failure of the social partners to reach agreement on the issue and there is a long way to go before the text is finalised and adopted. The directive could become more palatable if the Government manages to negotiate an exclusion from its scope for workers' pay and benefits, some of which (eg occupational pensions) would be administratively complex to extend to short-term temps. If the proposal is implemented in its current form, agencies willing to give their temps permanent contracts with the agency, including pay even when the worker is not assigned, may become very popular!

Also note that the Government's proposed changes to the employment agencies regulations (see e-mail update dated 2nd February 2001) remain outstanding. Revised regulations are expected in the next few months.

(2) "National Works Councils"

There has been further progress on the European Directive on Information and Consultation (for further details see e-mail updates dated 25th June 2001 and 10th January 2002). The joint text for the so-called "National Works Council" directive was finally adopted in February 2002. The directive will have to be implemented in the UK by 23rd March 2005. At that point it will apply to businesses with 150 or more employees. Those with 100 or more employees will be covered from March 2007 and those with 50 or more from March 2008. Businesses with fewer than 50 employees will not be affected. The Government has indicated that it will consult widely about implementation in the UK.

(3) Sexual harassment

The European Parliament and Council have announced that they have reached agreement on a draft directive amending the Equal Treatment Directive to expressly cover sexual harassment at work. The agreement now has to be formally approved and adopted by both institutions (expected to take place in May) and will then have to be implemented by Member States by 2005. The Directive is not yet publicly available, but press releases state that the Directive will:

  • lay down a clear definition of sexual harassment (as a form of discrimination) as "where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment"
  • require employers to produce "equality plans" (including gender breakdowns of the workforce and statistical details of men and women who have been trained and promoted) and to make these available to the employer's workforce
  • define as discrimination instructions to discriminate on grounds of sex
  • introduce rights to paternity leave and provide that men returning from such leave and women returning from maternity leave are entitled to return to their job or an equivalent post on terms and conditions no less favourable
  • provide that compensation for discrimination may not be subject to a ceiling
  • oblige Member States to set up promotional bodies (with roles similar to the EOC)
Most of the provisions of the Directive will require little change to UK law (the "equality plans" provision is a notable exception), but it is likely to have a larger impact elsewhere - the proposal is apparently aimed at the southern Member States where there is little understanding of harassment issues!