It’s funny how you see a term you’ve never seen before and then everywhere you look you see more of it! It’s exactly a month since the Agency Workers Directive came into effect on 1st October so I thought I’d spend a little time this week taking a look at the effect it’s having in the workplace. And hoping that, in the month since we conducted a Kronos survey, organisations are a bit clearer on who is affected by the change in legislation. Legislation which primarily gives agency workers very similar rights to employees after a 12 week period of employment.

Which led me to come across the Swedish Derogation – an option that was written into the Temporary Agency Work Directive that allows member states to rule that where an agency worker is employed directly by the agency, they are not protected by the equal treatment provisions in the Directive.

So what does that mean in practice? Well an agency worker could have been working for an organisation for a long period of time and could now be entitled to equal pay and holidays. Instead, using ‘Swedish’ derogation, the agency takes the worker onto its own books and pays the worker itself. There are some protections for the worker in terms of maternity pay and a contract of employment, but when the worker is placed on an assignment they can legally be paid less than somebody employed directly by the company.

The other problem is that in the UK, the agency is obliged to employ the agency worker only for a minimal amount of paid work per week and, because the agency worker is now an employee of the agency, they must be available for work when it comes in – which might be infrequently in a bad week.

So for every piece of legislation designed to protect the worker, it seems there’s a legal loophole that is quickly exploited – and, in this case, at the expense of the workforce.

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