Unfair Dismissal of Agency Workers or Unfair Legislation in the UK for Businesses using Agency Workers?
Abstract The contribution encapsulates a legal discussion on the controversial figure of the agency workers, from the judicial debate blossomed during the last decade in the British courts, as regards their legal characterization, until the most recent developments, particularly the legislative framework passed in Britain, the Agency Workers Regulations. On such footings, the investigation focuses on the main law provisions of the recent British legislation, including the most crucial limbs of the domestic statute. Additionally and against the backdrop of a comparative analysis, where the Italian jurisdiction is adopted as the “comparator”, criticism is expressed by the authors as regards the way the “harmonisation” of EU inspiration (the Temporary Agency Work Directive) has been brought about in this strategic and increasingly important sector of the job market. Particularly, it is adumbrated the view that Britain, with its rigorous and rigid implementation of the Directive, may be currently damaging its own businesses with its irrationality of harsh rules, whereas a country like Italy, where the pertinent EU piece of legislation is applied with an indirect technique – i.e. the tolerance towards the already existing legislation of the fornitura di servizi (provision of services) – may de facto be dodging the constraints of the legislator in Brussels. These findings, of comparative law flavour, with the prominent example of Italy highlighted as a
tenuous background, may confirm the sceptical view that, since the beginning, some scholars had expressed towards the Directive and its nebulous teleology.
This contribution will analyse the concept of unfair dismissal and how it applies to agency workers in the context of both UK common law cases and statutory provisions introduced by the UK parliament, with a view to reaching some conclusions regarding the overall legal position of
agency workers and how recent changes both in the common law and legislation may affect the future of agency workers in the UK. The “ontological” concept underpinning agency work, drawing extensively on the issues pertaining to working in a tripartite relationship and the theory and principles behind unfair dismissal, has been ultimately legislated in the UK. However, the latest developments cannot neglect the intense debate that common law cases have sparked off, especially during the last decade, albeit before the instigation of the EU over-layer in this matter. The position of agency workers, particularly through the bête noire of their potential link to the hirer via an implied contract of employment,1 has been eventually judicially tamed, although it is clear that the matter had the potential to open the floodgates to an insuppressible tide of unfair dismissal claims. In this work, the ultimate legislative intervention shall be discussed, taken from the domestic repercussions these new rules may levy on the agency workers’ legal status, any possible entitlement to the right not to be unfairly dismissed (with a proposed, possible, speculative interpretation of the new legislative concept of “agency worker”, which probably renders the aforementioned floodgates not entirely impregnable), and the future of agency work in the UK. A continental European perspective shall be provided as well, particularly as regards the way agency workers are currently legislated on after the implementation of the EU Temporary Agency Work Directive. More specifically, a case study therein will focus on the Italian jurisdiction where, quite peculiarly, the Directive – it may be speculated - has not implemented, at least from a substantial – rather than formal – point of view! In essence, and without pre1
See among the dicta: Dacas v Brook Street Bureau  IRLR 190. It must be remembered that the implication of a contract of...
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