Guidance on agency workers' rights leaves crucial questions unanswered, says expert

The Government has published guidance on the Agency Worker Regulations which implement the EU's Agency Worker Directive and come into force in October.

But Simon Horsfield, an employment law expert at Pinsent Masons, the law firm behind OUT-LAW.COM, said that the guidance leaves uncertainty in some areas.

"Whilst the guidance is to be welcomed, in some respects there remain more questions than answers," said Horsfield. "It is likely that those questions will be the subject of litigation in the employment tribunals in due course and that absolute clarity will only be obtained as decisions are handed down by the higher courts."

The Regulations change the law to ensure that workers from agencies have many of the same rights as those employed directly by an organisation.

"Under the Directive 'equal treatment' relates only to basic working and employment conditions of temporary agency workers (eg pay, working time)," said an explanation of the new rules by the Department of Business, Innovation and Skills (BIS). "The Directive does not affect the employment status of temporary workers."

The guidance sets out some of the detail of how the Regulations will work in the UK. They make it clear that the law will apply to agency workers for an organisation, not to people who are working for themselves or those on secondment from another organisation.

"Those who are likely to be outside the scope of the regulations include individuals who find work through a temporary work agency but are in business on their own account [and] individuals on secondment or loan from one organisation to another," said the guidance (48-page / 299KB PDF).

"If there is a dispute about whether someone is within the scope of the regulations, the courts will consider if the description of the arrangements reflects the reality of the relationship," said the guidance.

Horsfield said that the clarification about those on secondment will be welcomed by business, but that the guidance will cause some confusion about who is and who is not self-employed.

"The Guidance explains that there are a number of tests which are used by the Courts to determine whether a worker is genuinely self-employed," he said. "It then refers to the employment status link on the Business Link website, which gives an overview of the law in this area."

"However, somewhat confusingly, the site includes a link to HMRC's employment status guidance, which is not the same test as employment tribunals adopt when considering employment status cases. There is, therefore, a disconnect here which will need further clarification," said Horsfield.