ATL

Supporting agency staff

Many ATL members contact us to ask about their rights as supply teachers employed by an agency. ATL solicitor Philip Lott examines the effects of changes to the rights of agency staff in the UK

For generations, staff engaged via an agency, such as supply teachers, have been the 'second-class citizens' of the employment world. After a long wait, changes are afoot to redress the situation a little.

There are two related aspects to the 'reduced status' of supply staff: firstly, as they are regarded as casual staff, they have no employment protection because they are not employed by the end-user (the school or college where they work). Their placement can be terminated, often on 24 hours' notice, with no right of challenge or redress.

Secondly, not being employees, they have no rights of equal treatment as to terms and conditions (eg under equal pay rules) in comparison with their colleagues in the workplace.

Each of these issues has been the subject of legal initiatives. However, only one has had a positive outcome. In a line of recent cases, the courts have wrestled with the question of agency workers' employment status. Judges have considered claims of unfair dismissal from workers who had stayed at a single placement for years and had become 'part of the family' of the workplace.

Could it be that, despite the written terms of engagement (which routinely make plain that the worker is not to be regarded as an employee), after a certain period a long-established worker must eventually gain employment protection? The judges began to reason that these workers should not be left in a legal limbo, employed by neither the agency nor the workplace.

Their solution was to imply an employment contract between the individual and the workplace - with the effect that a long-term agency worker could claim unfair dismissal against the end-user organisation.

Sadly, in 2008 the issue reached the Court of Appeal in the case of James v London Borough of Greenwich. This judgement has now effectively scuppered this 'lifeboat' for agency staff. The case concerned an agency worker whose engagement had lasted for three years and who had come to be treated as a conventional member of staff.

Her services were unceremoniously 'dropped' after a period of sickness, when the council replaced her with another agency worker. Although having sympathy for the long-term worker, the court emphasised that the passage of time does not itself create an inference of employment - and the harsh reality is that agency workers are often 'employed by nobody'. Mrs James lost her claim for employment protection rights.

However, on the second issue - of equal treatment - there is a glimmer of hope. For several years, the government had resisted proposals to give agency workers equal rights with the established employees of the end-user where they work. Finally, last summer, an agreement was brokered with the Trades Union Congress and the Confederation of British Industry for a (modest) initiative in the favour of agency staff.

This effectively broke the log-jam of negotiations, and enabled the European Union to pass the 2008 Temporary Agency Work Directive. This requires member states to introduce legislation enabling agency workers to claim some equality with their workplace colleagues. This is excellent news. However, there are three significant caveats:

• First, the right to equality relates only to pay, working hours and holiday rights (not, for example, to pensions or sick pay).

• Second, there will be a qualifying period of 12 weeks before the right comes into effect (raising the possibility that employers might evade equality by offering shorter placements).

• Legislation giving effect to the directive does not have to be introduced until December 2011 (so watch this space on government implementation).

It is not exactly the dawn of a new era, but the European Union's new directive represents the best news agency workers have had in years.