Agency Workers

Author:Ms Joanne Hyde
Profession:Eversheds O'Donnell Sweeney

A Temporary Solution....

There is just over a year before the controversial Temporary Agency Workers Directive ("the Directive") must be implemented into Irish law (it must be transposed by all member states by December 2011). However the long lead in time should not make employers who rely on agency worker arrangements complacent as there is much in the Directive to get to grips with.

The Directive is designed to ensure that workers employed through an employment agency are given the same terms and conditions as comparable permanent employees doing the same or similar work in the end-user company. Joanne Hyde, Head of Employment Law at Eversheds O'Donnell Sweeney considers how this will work in practice and whether it will destroy the value to employers of using agency workers.

Current Status

There is a lack of legislative clarity on the status of agency workers. The traditional view has been that they are neither employees of the employment agency nor of the end-user company but they are instead engaged under a contract sui generis, a unique kind of contract.

Several employment statutes tried to compensate for this position by specifically including within the definition of a "contract of employment" contracts between an agency and an agency worker. The "employer" is defined as the party liable to pay the wages of the agency worker, i.e. the agency. The agency is therefore responsible (and liable) for the protection of the agency worker's rights under the following legislation:

Terms of Employment (Information) Acts 1994-2001 Payment of Wages Act, 1991 Organisation of Working Time Act, 1997 Maternity Protection Acts, 1994-2004 Adoptive Leave Acts, 1995-2005 Carer's Leave Act 2001 Protection of Young Persons (Employment) Act, 1996 National Minimum Wage Act, 2000 Parental Leave Acts, 1998-2006 Employment Equality Acts, 1998-2008 Protection of Workers (Part-Time Work) Act, 2001 Redundancy Payments Acts 1967-2007 EC (Protection of Employees on Transfer of Undertakings) Regulations, 2003 The Unfair Dismissals Acts 1997-2007 treats the agency worker differently as under these Acts, the employer is the person for whom the employee actually works (i.e. the end-user company) rather than the agency. Compliance with health and safety requirements is also the responsibility of the organisation for whom the agency worker is actually working.

However, whilst temporary agency workers have some legal protection from the legislation outlined...

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