| 释义 |
agency workers
Workers who are supplied to an employer by an agency, usually on a temporary or contingent basis (e.g. to cover for staff sickness or until a permanent staff member is recruited). Workers may also be supplied on a “temp to perm” contract (i.e. temporary to permanent employment), and in this case the agency is usually due a fee upon transfer. Agency workers have always lacked employment protection rights. Some protection was provided by the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended; see also (Amendment) Regulations 2019), but employment rights have remained a problem, as it can often be difficult to establish who, if anyone, is the employer. Such workers are sometimes said to have a “triangular” working relationship, in so far as they do their work for the client but are paid by the agency. They may have a contract with the agency (McMeechan v Secretary of State for Employment [1996] EWCA Civ 1166), with the client (Dacas v Brook Street Bureau [2004] EWCA Civ 217), or, sometimes, with neither (Montgomery v Johnson Underwood Ltd [2001] EWCA Civ 318; see also Bunce v Postworth Limited [2005] EWCA Civ 490). In order to decide whether such a worker is an employee the courts have looked for a regular pattern of mutual obligations between the parties (Consistent Group Lts v Kalwak and others [2008] EWCA Civ 430). The courts have been willing to consider the possibility of an implied contract of employment between a worker and the client who is using his or her services, but this would rarely be the case (James v London Borough of Greenwich [2008] EWCA Civ 35). In the past decade agency workers have, however, benefited from the Agency Workers Regulations 2010, which implemented the earlier EU Agency Workers Directive 2008/104. The Regulations provide a right to “equal treatment” when an agency worker has undertaken the same role, whether on one or more assignments, with the same hirer for 12 continuous weeks. Agency workers have the right to bring a claim in an employment tribunal if assignments are structured so as to avoid the scope of the Regulations. “Equal treatment” means the agency worker should enjoy the same basic working and employment conditions as he or she would have been entitled to if recruited by the hirer under a contract of employment to do the same job. Basic working and employment conditions cover pay and working time protections (e.g. rest breaks; annual leave entitlement). The Regulations do not give agency workers a right to complain about unfair dismissal or claim certain other employment rights because they do not make agency workers “employees”. In this respect earlier case law remains relevant. |