More EU regulation for temporary agency workers?

The EU Commission has said it wants to increase protection for temporary workers who are briefly posted abroad, putting yet more regulations in place in the contingent workforce arena.

The commission believes working conditions for temporary agency workers sent abroad often do not meet minimum standards and that posting workers in other countries is being used as a way to evade minimum social standards.

The Commission said that the plans are designed to eradicate the abuse and exploitation of employment rules and that there should be stricter controls in place for employment agencies to avert social dumping.

Employment, Social Affairs and Inclusion Commissioner, László Andor, said the proposals would clarify the rules on posted workers, and put practical safeguards in place against social dumping.

Over one million temporary workers are sent abroad each year with Germany, France and Belgium being the top destinations. It’s estimated that a quarter of these workers are in the construction industry, which raises question as to how further EU legislation could impact on the industries slow recovery.

Source: Staffing Industry Analysts

Unfair dismissal – how will the new legislative changes affect you?

Unfair dismissal has always been an area of employment law capable of fostering strong feelings.  Employers can often be found guilty of dismissing an employee unfairly, even where the employee did something that would fully justify dismissal, simply because the dismissing employer was found not have followed the correct procedures. Conversely, employees want job security, and knowing that they can’t be dismissed capriciously is a key tenet of obtaining this security.

This Good Friday sees a change in the length of continuous service an employee needs before they are able to claim protection from unfair dismissal being extended from twelve months to two years.  The Coalition government has made the change in response to industry consultations that suggest this increased time will encourage companies to hire more staff, as employers can be safe in the knowledge that if the appointment doesn’t work out, any dismissal of that member of staff can’t be unfair (other than for certain statutorily protected reasons such as pregnancy or discrimination relating to a protected characteristic).

Employee rights such as unfair dismissal have historically been the sole preserve of permanent employees.  Whilst certain temporary work agencies have historically employed temporary workers, everyday employee rights have not generally affected the temporary work industry.  However, following the introduction of the Agency Workers Regulations 2010 (“the Regulations”), more and more temporary work agencies are employing their temporary workers to take advantage of the “Swedish Derogation” provisions contained in the Regulations.

One of the main consequences of employing temporary workers under the Regulations is that these temporary workers become employees, with the employing agency then subject to all of the usual employment regulations.  Whilst the changes to the unfair dismissal rules will not be retrospective, it does bear thinking about when temporary work agencies employ their temporary workers.  For instance, as the Regulations came into force some six months ago, any temporary workers employed on or around the 1^st October 2011 may already be over halfway through the service period necessary to meet the unfair dismissal protocol.  Temporary work agencies would do well to bear this in mind when considering employing their temporary workers.

So, what effect will the changes be likely to have on employee rights as a whole?  Well, as the changes do not apply retrospectively, it is unlikely that we will see any immediate effect, as all those people currently employed will still benefit from the lesser qualifying period.  It has been suggested that the changes to the legislation will weaken the employment position of certain demographics, such as women and younger workers, both of whom are statistically less likely to reach two years in employment with the same employer.  It has also been suggested that the extended period necessary to benefit from unfair dismissal protection may see an increase in alternative causes of action being brought to employment tribunals, such as allegations of discrimination, as dismissed employees seek alternative ways of securing justice for dismissals they deem to be unfair.  It is worth considering that, although the compensation level for unfair dismissal is capped, there is no limit on the levels of compensation that can be awarded against a company where it is found to have discriminated against a worker.

It is hard to say at this juncture what effect the changes will have on employers and employees.  Only time will tell whether they do give rise to an increase in jobs, whether they decrease the case load on an already overburdened tribunal system, or whether employees’ rights are significantly weakened.

– James Hulsken, de Poel Solicitor

Statutory maternity, paternity and sick pay increases.

With the new tax year comes changes, from today the standard rate of statutory maternity, paternity and adoption pay increases and from next week statutory sick will increase too.

It is important to note that despite the Agency Workers Regulations temporary agency workers will not be impacted by the increases. Our Legal Director, Joe Tully explains that the directive does not give temporary workers full employment rights.

“This is one of the big misunderstandings amongst FDs, these temporary agency workers will still be classed as temporary. They cannot request flexible working, redundancy, occupational sick pay, occupational maternity/paternity pay, and they do not have entitlement to pensions.”

Pay rates will increase as follows:

• Statutory maternity, paternity and adoption pay: £128.73 to £135.45 per week
• Statutory sick pay: £81.60 to £85.85 per week

Extending the Gangmasters License to the Construction Industry

Introduced in 2004 after the Morecambe Bay cockle picking disaster, the Gangmasters Licensing Bill currently applies to the agricultural and food processing industry. However, since 2009 there have been calls to extend it to the construction industry.

The Bill was meant to have it’s second reading at the beginning of the year, this didn’t happen and there is no set date for when it will happen. But, as the second time the Bill has been proposed now, it is likely that a debate will take place.

The construction industry has had a hard time of it during the recession as, arguably, one of the worst hit sectors. Whereas the agricultural and food processing industry is cyclic and recession-proof (we’ll always need to eat), the construction industry isn’t as robust and when times get tough funding for building projects gets cut.

That said, in last weeks budget the construction industry did receive a welcome boost with the announcement of further funding for new homes, however the construction industries response to this has been a mixed one.

So, should the licensing come into effect what impact would it have on the construction industry?

As a large user of temporary agency labour Gangmasters Licensing is likely to be felt significantly in the sector. Employers would see increased administration and associated costs for their workforce as well as regular inspections to ensure the license is being adhered to.

In a time of economic recovery the legislation could prove to have a negative impact on the growth of the industry.

Migrant worker fee hike

A planned rise in visa fees for migrant workers announced last month has been described as a “bitter blow” for companies.

The government has announced plans for substantial rises “to generate revenue and reduce the burden on the UK taxpayer”, which means employers face a hike in visa fees for skilled migrant workers.

Damian Green, Minister for Immigration, said that the fees for skilled workers, or Tier 2 migrants, will increase by 20% to £480, whilst the cost of sponsorship licences for employers will rise by 46% to £1,500 for large companies, and by 61% to £500 for small companies.

The Confederation of British Industry (CBI) has criticised the hikes, in an already delicate time for businesses. Neil Carberry, CBI director for employment and skills policy said:

“The shock announcement that some work permit charges will rise between 20 and 60 per cent will come as a bitter blow to businesses. Firms have yet to see the improvements in customer service they were promised, in return for the last tranche of inflation-busting rises last year.”

The new fees are expected to come into force in April 2012, but the Houses of Parliament must first approve them.

Are your agency drivers’ licenses legal?

A BBC investigation has found ‘disturbing’ practices in the issuing of UK driving licenses to foreign nationals.

The corporation said: “…foreign drivers who would not normally be allowed to drive in the UK have obtained licences via agents in London who illegally exploit an arrangement the UK has with Hong Kong.

An investigation by the DVLA and the Hong Kong Government is now underway.

So, what could this mean for your temporary agency drivers?

Unfortunately there is no sure fire way of knowing if your drivers are using an illegally obtained license – in fact the DVLA have admitted they will find it difficult to find out. But you can ensure that everything in your power is done to make sure you’re compliant.

de Poel’s electronic timesheet and invoicing system, e-tips® manages all of your temporary agency workers and aids in recruitment agency management. Compliance records can be stored on the system so you are assured that the drivers you’re hiring have the relevant documents and qualifications to do the job.

We also audit your preferred agency panel yearly, so you can be safe in the knowledge that your recruitment agencies are compliant.

Do your agency candidates have the right to work?

With recent figures confirming unemployment in the UK is at its highest in 17 years, and with further press highlighting the number of foreign nationals working in Britain; discussions have turned to checks on foreign nationals from outside the European Economic Area (EEA) and their right to work documentation.

According to Recruiter magazine: “Illegal working has damaging social and economic consequences for the UK. It undercuts businesses that operate within the law, undermines British workers and exploits migrant workers.”

It’s an employer’s responsibility to check that their workers have all the correct documentation to work in the UK. Those employers who do not adequately carry out these checks, and those found to be employing people illegally, can find themselves with strict fines, up to £10,000 per illegal worker.

The UK Border Agency (UKBA) is dedicated to simplifying the process of inspection of these documents. As of the end of February 2012, biometric residence permits (BRPs) will be issued to successful applicants from outside the EEA, to stay for longer than 6 months. This one permit will replace the array of right to work documentation previously required by each migrant worker.

In addition to this, in spring, an online checking system will be available for employers to verify that the details of the BRPs are correct and ultimately that the worker can legally work in the UK.

The advancement of The UK Border’s Agency procedures will make the checking of right to work documents simpler, easier and crucially more secure for businesses.

With such harsh penalties and the high risk potential for legal exposure it is imperative that temporary recruitment agencies not only check these documents, but also ensure they have appropriate system of recording and managing this information.

The UK’s number one procurer of temporary agency labour, de Poel, have already developed a unique function within their online e-tips® system, to enable temporary recruitment agencies to record, store and easily access the right to work documents for their workers.

Such temporary recruitment agency management will not only mitigate legal exposure to recruitment agencies but will also help to protect the wider UK economy.

With recent figures confirming unemployment in the UK is at its highest in 17 years, and with further press highlighting the number of foreign nationals working in Britain; discussions have turned to checks on foreign nationals from outside the European Economic Area (EEA) and their right to work documentation.

According to Recruiter magazine: “Illegal working has damaging social and economic consequences for the UK. It undercuts businesses that operate within the law, undermines British workers and exploits migrant workers.”

It’s an employer’s responsibility to check that their workers have all the correct documentation to work in the UK. Those employers who do not adequately carry out these checks, and those found to be employing people illegally, can find themselves with strict fines, up to £10,000 per illegal worker.

The UK Border Agency (UKBA) is dedicated to simplifying the process of inspection of these documents.  As of the end of February 2012, biometric residence permits (BRPs) will be issued to successful applicants from outside the EEA, to stay for longer than 6 months. This one permit will replace the array of right to work documentation previously required by each migrant worker.

In addition to this, in spring, an online checking system will be available for employers to verify that the details of the BRPs are correct and ultimately that the worker can legally work in the UK.

The advancement of The UK Border’s Agency procedures will make the checking of right to work documents simpler, easier and crucially more secure for businesses.

With such harsh penalties and the high risk potential for legal exposure it is imperative that temporary recruitment agencies not only check these documents, but also ensure they have appropriate system of recording and managing this information.

The UK’s number one procurer of temporary agency labour, de Poel, have already developed a unique function within their online e-tips® system, to enable temporary recruitment agencies to record, store and easily access the right to work documents for their workers.

Such temporary recruitment agency management will not only mitigate legal exposure to recruitment agencies but will also help to protect the wider UK economy.

Ensuring company legal compliance

Over the past 8 years the Government has realised the need for tighter legislation as regards employment and has subsequently introduced a number of laws, alongside increased resource to enforce standards and compliance, which are having a costly effect on end-users of temporary agency labour. Indeed, in February 2011, the Government delivered a £1.2million campaign to raise awareness of employment rights among vulnerable agency workers specifically. The aims were to build a higher profile for the Employment Standards Agency (EAS) and to increase awareness of the special safeguards for agency workers.  This had significant impact on the volume of calls to the EAS helpline and visits to the Direct.gov website for relevant guidance.

The Government made significant progress during 2010 and 2011 in strengthening their enforcement of employment agency legislation.  As part of a shift towards a more risk-based regime, the expanded team of inspectors carried out a series of blitzes on agencies across Great Britain, the EAS uncovering 3,314 infringements of the law in 2011 alone. Thus, companies are now realising the importance of keeping on top of incoming legislation and of implementing formal terms of business as a means of controlling their indirect costs and managing overall spend on a temporary agency workforce.

Ensure you are aware of current and forthcoming legislation. Legislation relating to temporary agency workers is constantly being updated and renewed and it is therefore ever more important to be sure that agencies are not cutting corners and perhaps more importantly, that they themselves are aware of any relevant legislation. You can only keep a check on this if you yourself know what legislation is coming out, and when.

Taking into account the Government’s determination to ensure compliance to employment laws, it is also essential that you are aware of where the responsibility lies. Whether it be with the recruitment agency or the end user of temporary agency labour, failure to understand could have a detrimental effect on your organisation, resulting in fines or indeed prosecution.

Immigration’s affect on unemployment in the spotlight

There’s conflicting news today about the affect immigration has had on the UK’s level of unemployment.

A report released this morning by the National Institute of Economic and Social Research (NIESR) suggests immigration has not impacted the rise in the jobless total. This contradicts persistent claims from anti-immigration activists and politicians that an influx of foreign nationals into the UK in recent years has led to more British-born workers out of work.

However, Migration Advisory Committee – the government’s official advisors on migrations – has now countered the report suggesting that there is a link between immigration from outside the European Union and job losses among UK workers.

They believe that for every additional 100 non-EU migrants in the UK the jobs of 23 native workers were “displaced”.

Certainly within the temporary work arena there are many reasons why foreign nationals may be employed over British-born workers, beyond simply the willingness to work for less. Many migrants offer skills and experience lacking in the UK’s workforce, therefore employing them as temporary agency workers plugs skills gaps on a short or long-term basis.

If you are planning to employ migrant temporary agency workers, you must ensure you employ them the right way, read our blog post from last year to find out how.

Increase in Illegal Immigration calls for stricter checks

The UK Border Agency (UKBA) has recently released a report that shows a significant rise in the number of illegal immigrants.

A 65% increase was shown in the number of illegal immigrants being transported through the Scottish and Northern Irish sea ports; a figure that is difficult to ignore.

Labour Politician, Gordon Brown commented: “This deeply concerning report must be a wake-up call for the government,” he said.

“It blows out of the water any claim that the situation is being dealt with properly in Northern Ireland because the time being spent by Dumfries and Galloway police dealing with immigration cases has soared by almost a quarter.”

When temporary agency worker spend is so high, it is clear that strict passport checks need to be in place. de Poel’s timesheet processing system, e-tips®, creates this protection and administers the checks for you.

Candidates can not be registered without a valid passport or NI number on e-tips®. This means that as well as validating their UK residency status, timesheets can not be assigned or processed without the legitimate identification, maintaining protection for your organisation.