The European Directive on Temporary Agency Work 2008/104/EC came into effect on 5th December 2011; it provides that all temporary agency workers must have equal treatment with regular workers from their first day of work. The Protection of Employee (Temporary Agency) Act 2012 transposes this EU Directive into Irish Legislation. The Act applies to agency workers employed by an employment agency who are assigned to work for another organisation. It ensures the equal treatment of temporary agency workers with regular workers from their first day of work in respect of:
- Working Time – rest periods etc
- Pay – It should be noted that the right to Equal Pay has retrospective effect to December 2011 when the Directive came into effect.
- Work of pregnant women and nursing mothers.
- Action taken to combat discrimination.
Under the 2012 Act, the Hirer has an obligation to provide the Agency with all such relevant information reasonably required by the employment agency to comply with its obligations under the 2012 Act. It sets out that temporary agency workers must have equal access to facilities such as childcare and must be informed of permanent employment opportunities. In the case of Team Obair Limited v Robert Costello AWD134, it was held that “…unlike other similar employment right statutes the Act does not require a claim for equal pay by reference to an actual comparator, nevertheless the rate that is to be paid to employees of the hirer who are engaged in the same type of work is an important evidential tool. Where a rate of pay is generally applicable to all workers performing the same work as that performed by the agency it may be readily inferred that if the agency worker was employed by the hirer hear she would be similarly paid.” The Act does not cover employees of contractor companies and limited liability companies where the worker is the beneficial owner. It does not apply to those employed under a managed service contract such as a contract for services. Employees taken on under a work placement scheme such as Job Bridge or a retraining scheme specified by the Minister for Jobs, Enterprise and Innovation are also exempt from this legislation. The Protection of Employee (Temporary Agency) Act 2012 further protects agency workers from being victimised for reporting any breaches of the Act. This means an employer is prohibited from penalising an agency worker by dismissal, unfair treatment or an unfavourable change to their terms and conditions of employment. The most important question from an employer perspective is who can the agency worker take a claim against? This depends on which rights the worker is seeking to enforce. For example, an agency worker would lodge an unfair dismissals claim against the person for whom the employee actually works rather than the agency. Any complaints under health and safety requirements are also the person for whom the employee works. In circumstances where the employee has lodged claims under the Protection of Employees (Temporary Agency) Act 2012, the party liable to pay the wages of the employee will be considered to be the employer of the agency worker. In circumstances where you are an agency sending employees to a client, the agency should be mindful that if the hirer is providing better terms and conditions to their employees than the agency worker, the agency would be liable. In terms of being the hirer of agency workers where the hirer no longer want a certain worker on their premises, the hirer should be mindful that the worker can take an unfair dismissal claim against them and not the agency. An agency worker taking a claim for unequal treatment technically could be awarded equal pay back to December 2011, when the Act was enacted. This is what occurred in Team Obair Limited v Robert Costello AWD134. In a recent decision of An Employer v An Employee AWD1512 AWD1513, the Respondent successfully argued that the Claimant could only recover in respect of the six month period ending on the date that they lodged their claims as no reasonable cause existed to extend the time. It is the Claimant’s duty to establish a breach of the Act. The recent High Court decision of Kearns, P in Mullholland v QED Recruitment 2015 IEHC 151 sets out that test in order for the Claimant to meet the burden of proof. The Claimant must first establish that a rate of pay applies generally to directly employed comparable employees. The Claimant in this case, relied on the evidence of one directly hired driver and failed to show that a generally applicable rate of pay existed. Had the Claimant in this case been able to show a generally applicable rate of pay existed, the onus of proving that those rates would not have been applied to the Claimant if they were directly employed by the Hirer shifts to the Agency to prove as established by the Labour Court in Team Obair. The case law, suggests that while the burden of proof lies with the Claimant to establish a breach of the act, the risk to the Agency could be the discrepancy going back to 2011 or when the Claimant began work. The Furlong and Stafford decisions, limited this risk, however an Agency should protect itself by obtaining all reasonable information from the Hirer, before agreeing terms and conditions with the worker. Agency worker can’t take claims under the Protection of Employees (Fixed Term Work) Act 2003 as it applies to employees on fixed-term contract and not agency workers placed by a temporary work agency to work under the supervision and direction of another organisation. However where the agency workers contract with the employment agency is a fixed term, it would then apply. An agency worker who is working on a part time basis and wishes to lodge a claim under the Protection of Employee (Part-Time Work) Act 2001, the comparator would have to be full time employee who is also an agency worker. Employers are strongly advised to seek advice if they feel they are faced with an issue regarding Agency Staff or if you have any queries in respect of the above article then please contact our 24 Hour Advice Service on 01 855 50 50.
