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Eversheds comment: Impending agency worker legislation review a good time to revisit wider UK employment protection issues

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    Commenting on today's claims by the TUC that UK agency workers are not being paid equally, Simon Rice Birchall, partner and expert on pay at global law firm Eversheds, says:

    "Demand for flexibility in staffing has remained strong in the UK of late, this is good news in many respects and suits many workers. However, striking the right balance between access to flexible working, whilst offering protection against exploitation, is clearly important.

    "A criticism levelled at agency working in the past was that it left too many workers unprotected and without genuine choice. The Agency Workers Regulations 2010 addressed many of the concerns regarding potential exploitation of agency staff. However, the regulations also include an alternative business model provided by the European Agency Workers Directive, which excludes such workers from claiming equal pay with client employees if they are directly employed by the agency. Despite being tagged a "loop-hole" in the law by some, the ability of agencies to employ agency workers directly in this way and to determine their own terms of employment is a legitimate legal option for both agencies and the agency workers under the regulations. Furthermore, despite much of the surrounding hype, in practice this course of action remains relatively rare. In a survey conducted by Eversheds last year, only 17% of the responses indicated they were relying upon the exemption.

    "Tackling worker exploitation and hardship arising from unlawfully low pay is clearly a vital aspect of any employment laws. That is what minimum wage legislation and enforcement must achieve. What it should surely not mean, however, is that the law should dictate contractual arrangements as between employers and employees beyond those accepted minimums.

    "There is clearly strong demand for simple, flexible working relationships from both employers and employees. The Government has undertaken to review the operation of the Agency Workers Regulations later this year and whether they are effective or proving too onerous. One wonders whether they might take this opportunity to consider more broadly, the employment needs of the UK and where that all-important balance of employment protection might be drawn."


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