Agency Workers - If There is an Issue, to Whom Does Liability Extend To?

Employees sourced through employment agencies are protected under the Protection of Employees (Temporary Agency Work) Act, 2012 which follows on from the EU Directive on Temporary Agency Work 2008/104. Under the aforementioned legislation, temporary agency workers who are employed by an employment agency under a contract of employment are afforded the right to equal treatment on a variety of specified pay and working conditions, specified as; (a) Basic pay (b) Working time (c) Rest periods (d) Rest breaks during the working day (e) Night work (f) Overtime (g) Annual leave (h) Public holidays (i) Access to collective facilities and amenities (e.g. canteen, childcare and transport Facilities, etc) (j) Access to information on vacancies in the hiring company This equal treatment relates to the conditions that comparable employees at the hirers’ company are afforded. In terms of equal treatment, the above list is exhaustive, so other terms and conditions not listed above carry no obligation for equal treatment. One of the main benefits to hirers in hiring employees through an agency as opposed to through direct recruitment is that, for all intents and purposes, the agency will remain the employer and as such, the bulk of responsibility will fall with the agency, however there are certain exceptions. Hirers need to be aware that employing an agency worker does not absolve you of any responsibility or potential risk of claims. In terms of risk, all claims relating to pay and working conditions would generally fall upon the agency who holds the employment contract as it is their responsibility to ensure that equal treatment is observed, however the hirer has an obligation to provide up-to-date information to the agency in order for them to ensure equal treatment is provided. The hirer is also responsible for providing access to collective facilities and amenities and information on vacancies within their organisation. Compliance with Health and Safety requirements are also a responsibility of the hirer and personal injury claims can also be affixed against the hirer if there is a work related accident, as they have an onus to provide a safe working environment to the agency worker. If an agency worker is placed at a hirer for 12 months and is subsequently dismissed under the Unfair Dismissals Act, the employer for purposes of making a claim would be the hirer. So any claims by an agency worker who has been dismissed would fall upon the hirer and not the agency. With all of the above in mind, it become onerous on both the agency and the hirer to ensure that agency workers are treated with the same consideration as permanent employees at the hirers’ company. If you have any questions in relation to this article please don’t hesitate to contact our expert employment law advisors on the 24 Hour Advice Service on 01 855 5050