28 Jun, 2013

European Court of Justice

A European Court of Justice (ECJ) ruling has provided useful clarification that EU legislation protecting fixed-term workers does not apply to temporary agency workers.

This is helpful, says the Association of Recruitment Consultancies (ARC), as it has been lobbying the UK government on a similar point for two years, namely that the existence of rights under the Agency Worker Regulations (AWR) should nullify the chance of employee rights being awarded to an agency worker.

The case (Della Rocca v Poste Italiane SpA, C-290/2012), which originally came before the Naples District Court, concerned a worker supplied by an agency on a series of fixed term assignments to the Italian postal service over a number of years. He claimed that the EU Fixed-term Work Directive (No.99/70) applied to him, and he had been discriminated against by the hirer’s refusal to renew the fixed term hire.

The worker’s claim failed and the ECJ confirmed that the Fixed-term Work Directive should not be interpreted as applying to assignments completed by agency workers. This was because even though the Agency workers were not specifically excluded, the intention of the Directive was that they should be, and coupled with that, since then the Agency Workers Directive of 2008 (AWD) had been implemented to deal with agency workers rights.

ARC chairman, Adrian Marlowe said: “This case underlines the fact that in Europe agency workers are treated as having different rights from employees, and that it is not the intention that agency workers can be entitled to employment rights. Instead the AWD deals with the rights of agency workers. However in the UK this is not clear under the Agency Workers Regulations, and agency workers can still apply to the employment tribunal for employment rights against the hirer.”

If the claim had been successful it could have had huge implications throughout the European Union and the UK. Temporary workers on fixed term assignments could arguably have claimed to have fixed term discrimination rights even though UK Fixed Terms regulations specifically exclude agency workers from those rights.

Marlowe said: “The risk of claims by agency workers for employment rights against the hirer unnecessarily damages relations between hirers and their supplying agencies and detracts from confidence in the recruitment supply industry.

“This ECJ case shows that agency worker rights and employment rights are mutually exclusive, but currently the AWR does not deal with this, leaving the argument open. ARC is therefore seeking to tighten up this part of the law. We want to clarify the status and rights of agency workers to ultimately save unnecessary time and cost for all involved in bringing an Employment Tribunal case. As with other regulations that are precise on this point, the AWR should be amended to make this clear.”

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