Should Agency Workers Be Treated Differently?

Abstract

The EU Temporary and Agency Work Directive created a right of equal treatment on working time and pay for agency workers compared to direct workers. This article asks, what justifications are there for any different treatment? Using job security rights as an example, this article explores the framework for regulation of employment agencies and the common law position of agency workers. It highlights, first, that profit-making agencies were frowned on historically by international law, and that principled regulation is required to prevent abuse. It shows, secondly, that the common law test of ‘mutuality of obligation’, that removes employment rights for agency workers, is legally and logically unsound. It then illustrates, third, that a recently developed test for implied contracts, which leads agency workers to have no employer at all, pays incomplete regard to the full authority on contractual and statutory construction. These loopholes are unfair and inefficient and amount to an unjustified subsidy for agency work. Simple recognition is needed that agency workers should not be treated differently, because work through an agency is work like any other.