A matter of weeks after the TUC has raised a formal complaint over UK implementation of EU agency worker rights, a draft EU report due out imminently suggests broad satisfaction with the way in which the requirements are operating in practice but also confirms a commitment to examine more closely the use by some Member States of pay between assignment contracts.

Martin Warren, Head of Employment Law at global law firm Eversheds comments: “The Agency Workers Directive required that EU Member States introduce minimum employment protections for agency workers by 5 December 2011. Whilst it is fair to say that setting equal pay and collective facilities for agency workers proved controversial in UK, we are now two years on. This anniversary also marks the deadline for a self-imposed review of the Directive by the European Commission, which had committed to consult with Member States and report back on how the Directive was working by 5 December 2013. In particular, the Commission had wanted to review the use by Member States of derogations from the Directive which might undermine its application.

“One of the more controversial aspects of the Directive, and one which was adopted in UK, is the exemption of “pay between assignment contracts” –historically known as “Swedish Derogation contracts”. This derogation disapplies equal pay requirements for agency workers who are employed by the agency on a permanent contract and who continue to be paid during breaks between assignments. It has been used by a number of high profile UK employers but has also been strongly criticised by trade unions as being contrary to the spirit of the Directive.

“In September 2013, the TUC formally lodged a complaint with the European Commission, alleging that the UK has failed to implement properly the Agency Worker Directive by allowing pay between assignment contracts and, moreover, by failing to implement sufficient protections against abuse. It had been thought by many that the EU review report, which is the culmination of research across all Member States, would similarly find fault with UK implementation. However, the draft report fails to reach any conclusions over the use of these contacts. Instead, it proposes more thorough review in due course, acknowledging that it is largely a matter of interpretation. What will be more encouraging for agencies who rely on these contracts is that the EU has expressed satisfaction over the way in which our agency worker regulations protect against abuse.”