Agency Workers v Permanent Employees

Article

28 September, 2010

In many industries there are different types of employment relationships between the owner and staff. This is particularly true in the hospitality industry and there is often a need for flexibility in working hours to accommodate the needs of the business in offering its services; be it a function at a hotel or the local take away being open into the small hours to accommodate late night revellers.

As a result, often individuals will be recruited as casual workers, fixed term staff or part time staff. There has been a tendency not to take staff on as employees as they will have different rights to those who are deemed to be workers. The main difference is that employees are able to claim rights such as unfair dismissal once they have been employed in the majority of cases for 51 weeks. The distinction has been somewhat narrowed over the years as workers including temporary and agency workers are able to pursue claims for discrimination although not for unfair dismissal.

Due to the variable nature of the work it is often the case that staff are recruited via agencies on the basis that there is flexibility to the working conditions. They can be recruited on short notice and the agreement can be ended quickly if that becomes necessary. Now it seems that there will be a further shift due to the recent consultation in connection with the EC Directive in relation to agency workers.

The intention is to give agency workers the same rights as permanent workers and the proposals currently suggest that the working conditions including pay are to be aligned with those of permanent staff. It is also intended that this will be the case within 12 weeks of working for the business. This could lend itself to shorter working periods for agency staff. However, this may create little difference to those businesses who use few agency workers, or are more inclined to recruit permanent employees with variable hours, for example by way of a rota or shift system.

Some businesses may consider whether agency worker status is still something that is desirable to achieve flexibility especially where rates of pay have to be the same as for those on permanent contracts.

It remains to be seen in the current climate of political change whether the Agency Workers Regulations, as drafted, come into effect in October 2011 as proposed. However, it is something that the hospitality industry will have to pay close attention to in the coming months.

For further advice contact Employment Solicitor Ruth Rule-Mullen at Forbes Solicitors on 01254 222399 or freephone 0800 689 0831.

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