European Commission reviews Directive on temporary workers' health and safety
The European Commission published in July 2011 an evaluation of the implementation in the EU member states of the 1991 Directive on the health and safety of fixed-term contract and temporary agency workers. It found problems with the Directive's implementation in a number of countries, notably with regard to the provision of information to agency workers.
On this page:
The 1991
Directive
Implementation
Scope and
objective
Information for workers
Provision of training
Dangerous work
Informing occupational safety services
Specific
provisions on agency workers
Effects in practice
Conclusions and next steps.
Key points
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Directive 91/383/EEC on measures to encourage improvements in the safety and health at work of workers with a fixed-duration or temporary employment relationship (on the EUR-Lex website) was adopted in June 1991, as an individual Directive within the 1989 health and safety "framework" Directive (89/391/EEC).
The rationale for the Directive is that workers on fixed-term contracts and temporary agency workers are particularly exposed to health and safety risks. It seeks to ensure that fixed-term/temporary agency workers:
- have the same level of protection as other workers;
- are not treated differently in working conditions and health and safety on grounds of their employment status (especially in terms of access to personal protective equipment); and
- are covered fully by the EU framework Directive and its individual Directives.
The key provisions of the Directive are that workers with a fixed-term contract and temporary agency workers must:
The rationale for the Directive is that workers on fixed-term contracts and temporary agency workers are particularly exposed to health and safety risks.
- be informed by the undertaking and/or establishment making use of their services of the risks they face, before taking up any activity - the information must cover any special occupational qualifications/skills or special medical surveillance required and any specific increased risks that the job may entail; and
- receive sufficient training appropriate to the particular characteristics of the job, taking account of their qualifications and experience.
Member states have the option of prohibiting the use of fixed-term/temporary agency workers for certain particularly dangerous work, especially work that requires special medical surveillance. Countries that do not take up this option must ensure that fixed-term and temporary agency workers performing work that requires special medical surveillance are provided with appropriate surveillance.
The services or people that employers are obliged (under the framework health and safety Directive) to designate to carry out protective and preventive health and safety activities must be informed of the use of fixed-term and temporary agency workers.
Specifically with regard to temporary agency workers, the Directive requires that the user company must inform the temporary work agency about the specific features of the job to be filled and the occupational qualifications required, before workers are supplied. The agency must bring all these facts to the attention of the workers concerned. For the duration of the agency worker's assignment the user company is responsible for the conditions governing performance of the work, in terms of health, safety and hygiene.
Implementation
The 1991 health and safety Directive was the first EU employment legislation to deal specifically with fixed-term and temporary agency employment relationships. In more recent years, Directives have been adopted that provide more generally for equal treatment for these workers - in 1999 for those on fixed-term contracts (Directive 1999/70/EC) and in 2008 for temporary agency workers (Directive 2008/104/EC).
The 1991 Directive was the first EU employment legislation to deal specifically with fixed-term and temporary agency employment relationships.
The health and safety Directive had to be implemented by 31 December 1992 by the then EU member states, and at the time of accession by the countries that have joined the EU since.
The Directive is transposed in the UK mainly by the Management of Health and Safety at Work Regulations 1999, while a number of Regulations deal with specific aspects of the health and safety of fixed-term/temporary agency workers, in areas such as hazardous substances and personal protective equipment. Further, the Health and Safety at Work Act 1974 applies to all workers, including those employed under fixed-term contracts and through temporary work agencies.
The European Commission is obliged to monitor the Directive's implementation and its practical effects. On 22 July 2011, 20 years after the Directive was adopted, the Commission published a working paper (SEC[2011]982 final) (on the Europa website) on these issues, based on two independent studies and a questionnaire addressed to the 27 member states and European trade unions and employers' organisations. We summarise the main findings.
Scope and objective
The implementing legislation in most member states correctly covers workers on fixed-term contracts and temporary agency workers, as defined by the Directive. However, the Commission notes that a few countries, notably Lithuania, do not expressly recognise temporary agency employment relationships in their national employment law.
With regard to fixed-term workers, most countries implemented the Directive by ensuring that their general health and safety legislation explicitly covers these workers, rather than by enacting specific legislation. More changes to national legislation were required in the case of temporary agency workers, probably because of the legal complexity of the three-way relationship (employee/agency/user company) involved.
Most member states now have a general statement in their national legislation that fixed-term and temporary agency workers have a right to equal treatment with other workers in all aspects of the employment relationship.
Most member states now have a general statement in their national legislation that fixed-term and temporary agency workers have a right to equal treatment with other workers in all aspects of the employment relationship, although some provide specific equal treatment rights in the field of health and safety. The Commission believes that this may be problematic, in that a right to equal treatment is not automatically equivalent to a right to be afforded the same level of protection as other workers in circumstances where temporary agency/fixed-term workers are more exposed to risks. The Commission cites statistical evidence (which it admits is somewhat fragmentary) indicating that these workers continue to face greater risks of accidents at work and occupational diseases than other workers and therefore do not benefit from equal protection in practice.
The country where the Commission identifies the most serious problems in implementing these aspects of the Directive is Latvia. Here, health and safety legislation includes no specific provisions concerning temporary work agencies and user companies. The contracts of workers employed by a temporary agency are treated as any other employment contract, and work performed by agency workers at a user company is regarded as work for the agency, which is regarded simply as providing services to the user company. There is no recognition that the user company is involved in the employment relationship. According to the Commission, "this does not seem to be in line with the provisions of the Directive and the specific situation of temporary workers does not seem to be taken into consideration by national rules".
The report finds that the UK implementing legislation seems to deal correctly with the employment relationships defined by the Directive. Fixed-term/temporary agency workers are covered by the national legislation implementing EU health and safety Directives and are afforded the same level of protection as other workers. The Commission notes that UK employers must provide their employees with suitable protective equipment, but in the case of temporary agency workers, the obligation applies only to the temporary work agency and not the user company.
Information for workers
Almost all member states have, in line with the Directive, made it obligatory for fixed-term and temporary agency workers to be informed, before taking up any activity, of the health and safety risks involved. However, the Commission believes that the Czech Republic, Luxembourg and Slovenia have not established this obligation in sufficiently clear terms.
The Directive stipulates that the information to be provided to workers must include any special occupational qualifications/skills or medical surveillance required and any specific increased risks that the job may entail. The implementing legislation in Bulgaria, Estonia, Luxembourg, Poland and Slovenia does not appear to require that the information must cover all these aspects.
In the case of temporary agency workers, the responsibility for providing the information should lie with the user company, but the relevant legislation in Belgium, Finland, Luxembourg, Netherlands and Portugal does not clearly include such an obligation on user companies in respect of all the required areas of information.
The Commission expresses no concern about the UK's implementing provisions in this area. These require all employers to provide any worker assigned to their undertaking with comprehensible information on any special qualifications or skills needed to carry out work safely, and on any health surveillance that must be provided to the worker. This information must be provided before workers start their activity.
Provision of training
Many member states do not specify that the training provider has to take into account fixed-term and agency workers' qualifications and experience, as stated in the Directive.
With regard to the Directive's requirement that fixed-term/temporary agency workers must receive sufficient training appropriate to the particular characteristics of the job, taking account of their qualifications and experience, most member states have adopted specific measures on training for agency workers, and relied on national legislation that applies to all workers in the case of fixed-term workers.
Of the 27 member states, 14 provide clearly in their implementing measures that the training must take place before the activity starts: Cyprus; the Czech Republic; Denmark; Estonia; France; Hungary; Luxembourg; Malta; Poland; Portugal; Romania; Spain; Sweden; and the UK. With regard to the content of training, almost all countries provide for training appropriate to the particular characteristics of the job, but the implementing measures in Lithuania and the Netherlands are not clear in this regard.
Many member states do not specify that the training provider has to take into account the workers' qualifications and experience, as stated in the Directive. Only Austria, Cyprus, Estonia, Germany, Ireland, Luxembourg, Poland, Portugal and Spain take this aspect into account in explicit terms.
The UK's Management of Health and Safety at Work Regulations require employers to provide their employees with adequate health and safety training before they start work and to take into account workers' capabilities when entrusting them with tasks.
Dangerous work
Only Belgium, France, Poland and Spain have taken up the Directive's option of banning the use of fixed-term and/or temporary agency workers for certain particularly dangerous work, and in these countries the prohibition applies more commonly to agency workers than to fixed-term workers. For example, Belgium bans the use of agency workers for various work with asbestos, gas and poisonous waste products.
Member states that do not use the prohibition option must ensure that fixed-term/temporary agency workers doing work that requires special medical surveillance are provided with appropriate surveillance. Of the member states that have not taken up the option (including the UK), all provide for medical surveillance, with the possible exception of Romania, where the situation is unclear. However, the obligation to provide medical surveillance is often general and does not address the specific risks involved nor the specific needs of fixed-term and temporary agency workers.
The relevant UK legislation requires employers and user undertakings to perform risk assessments. Once the risks have been assessed, employers must ensure that their employees are afforded appropriate health surveillance with regard to the risks to their health and safety identified by the assessment.
Informing occupational safety services
The framework health and safety Directive obliges employers to designate one or more workers to carry out activities related to the prevention and protection of occupational risks in the undertaking and/or establishment or, if internal capabilities are insufficient, to use competent external services or people to carry out these activities. The 1991 Directive requires that these workers, services or people must be informed when fixed-term/temporary agency workers are used, to the extent necessary for the workers, services or people to be able to carry out adequately their protection and prevention activities for all the workers in the undertaking and/or establishment.
Only 12 member states clearly provide for an obligation to inform the competent health and safety prevention/protection bodies of the presence of fixed-term and temporary agency workers in an undertaking/establishment.
Only 12 member states (Austria, Cyprus, Finland, Germany, Luxembourg, Malta, Poland, Portugal, the Slovak Republic, Slovenia, Spain and the UK) clearly provide for an obligation to inform the competent prevention/protection bodies of the presence of fixed-term and temporary agency workers in an undertaking/establishment.
Many member states appear not to meet the Directive's requirements on this point. They do not provide explicitly for an obligation to inform the relevant bodies about the presence of fixed-term and agency workers in undertakings. While these countries state that their national rules comply with the Directive, they "fail to explain how the body responsible for protection and prevention will be able to carry out its duties when necessary, without this information". This is the case for Belgium, Bulgaria, the Czech Republic, Denmark, Estonia, France, Greece, Hungary, Ireland, Italy, Latvia, Lithuania and Romania. However, in Belgium, Denmark, Hungary, Lithuania, the Netherlands and Sweden, it seems that prevention/protection bodies can have the relevant information if they so require.
The UK's implementing provisions are deemed satisfactory. The Management of Health and Safety at Work Regulations provide for the designation of competent persons to assist with the implementation of health and safety measures, and oblige employers to inform them of the assignment of agency and fixed-term workers in the undertaking.
Specific provisions on agency workers
The Directive's stipulation that the user company is responsible for temporary agency workers' health and safety conditions during work assignments has been implemented adequately by most member states. However, it is not clear in a few instances, notably Latvia, whether user companies are responsible or not. Further, Finland, Portugal and the UK have systems of system of dual responsibility that may lead to legal and practical difficulties.
There are a number of problems with the national transposition of the Directive's provision that the user company must inform the temporary work agency about the specific features of the job to be filled and the occupational qualifications required, before workers are supplied.
In the case of the UK, the Health and Safety at Work Act 1974 provides that employers must organise their business in such a way that people not employed by them who may be affected are not exposed to health and safety risks. The Commission says that this would seem to cover temporary agency workers assigned to a user company, but does not appear to constitute adequate transposition of the Directive. In practice, in the majority of cases the responsibility would lie with the user company. It is up to the relevant court to establish whether or not, in the circumstances of a particular case, an employment relationship exists. If it does, employer duties under health and safety legislation cannot be avoided - even if the temporary work agency is deemed to be the employer.
There are a number of problems with the national transposition of the Directive's provision that the user company must inform the temporary work agency about the specific features of the job to be filled and the occupational qualifications required, before workers are supplied, and that the agency must relay these facts to the workers concerned. In some countries (such as Malta), the user company has to inform the worker directly, rather than via the agency. In other member states (such as Belgium), although the user company has to inform the agency about the occupational qualifications and specific features of the job, the agency is not expressly obliged to pass on all this information to the worker before the assignment. This clearly constitutes inadequate transposition of the Directive.
The relevant UK legislation, which is not questioned by the Commission, requires the user company to inform the temporary work agency of the occupational hazards to which the agency worker will be exposed at the workplace, and the agency must bring these facts to the attention of the worker concerned.
Effects in practice
In preparing its report, the Commission asked trade unions and employers' organisations across the EU whether or not they think that fixed-term and temporary agency workers benefit from equal health and safety protection in practice. Replies were received from 12 countries, and in half of them both unions and employers consider that this is the case for fixed-term workers. In the other six member states, even though the equal treatment principle had been introduced in national law, the social partners still think that fixed-term and agency workers are more exposed to risks. One of the reasons given is that they are assigned more often to dangerous workplaces than other workers.
The social partners in eight countries agreed that agency workers do not benefit from the same level of protection as other workers and are more likely to be exposed to risks in the workplace. In six countries, the social partners considered that the national legislation implementing the Directive has had positive effects in this respect. However, unions argued that the Directive's model of protection is not adapted to different forms of contracts and subcontracts, as in the construction sector for instance.
A specific practical problem reported from many member states is that temporary agency workers (unlike fixed-term contract workers) are often not given sufficient information about the special occupational qualifications or special medical surveillance required by an assignment or about any increased specific risks that a job may entail. The user company often does not inform the temporary work agency properly, as required by the national legislation transposing the Directive. Agency work assignments are frequently urgent and there is no time to provide the compulsory information to the worker.
While some member states oblige agencies to provide agency workers with a written contract, this can be bypassed by agencies using standard contracts or pro formas with the same content for all workers and lacking the relevant health and safety information. Where information is given, it is sometimes inadequate as it does not take into account the worker's qualifications or characteristics. This particularly affects migrant workers, whose command of the national language may be inadequate and who therefore do not fully understand the information.
It is not always clear to temporary agency workers whether the temporary work agency or (as stipulated in the Directive) the user company should take responsibility for their health and safety during assignments.
Major problems with information given to agency workers were raised - especially by trade unions - in nine member states. In only four countries does the information aimed at these workers seem to be transmitted appropriately.
Other practical issues identified by the Commission include the following:
- Temporary agency workers often do not benefit from the medical checks stipulated in national legislation, for example because their periods of employment are too short to give them access to health surveillance, or because is not always clear whether the user company or the temporary agency should provide the health check.
- Even where member states have implemented the Directive's requirement that competent prevention/protection bodies must be informed about the presence of fixed-term and temporary agency workers in an undertaking/establishment, it appears that these workers often do not benefit from the support of these bodies. These workers may therefore not be properly informed about risks or given the means to be protected against them. Further, the relevant bodies may not be able to take the necessary measures to protect and support the workers concerned if they are not aware of their presence.
- In the few countries that have prohibited the use of fixed-term and/or agency workers in some particularly dangerous work, this prohibition is contested by employers' representatives. They state that no information is available to indicate that this measure has decreased the accident rate among the workers concerned.
- In at least seven member states, it is not always clear to temporary agency workers whether the temporary work agency or (as stipulated in the Directive) the user company should take responsibility for their health and safety during assignments.
- Concerns about enforcement of the measures implementing the Directive were raised in a majority of countries. The main concern is that there is no specific enforcement action focusing on temporary agency and fixed-term workers, with health and safety authorities in only two member states apparently targeting these workers when carrying out inspections.
Conclusions and next steps
The Commission concludes that, in general terms, the implementation of the Directive does not raise substantial issues of interpretation or legal difficulties. There have been no recent cases brought before the European Court of Justice and the number of complaints is very low.
Problems with the Directive's implementation mainly relate to the quality and timeliness of information, and responsibility for providing this information, especially to temporary agency workers.
However, a number of problems with the implementation of the Directive have been identified, suggesting insufficient transposition by some member states. These problems mainly relate to the quality and timeliness of information, and responsibility for providing this information, especially to temporary agency workers. The achievement of the Directive's main purpose may be impaired as a result, since information is a vital component of risk prevention and a condition for ensuring equal protection for the categories of workers that the Directive is aimed at.
While the available statistical information does not allow for a complete analysis (in particular owing to a lack of specific data on work-related accidents and illnesses among fixed-term and agency workers), it seems to confirm that fixed-term and temporary agency workers are still comparatively more exposed to occupational health and safety risks. A number of factors contribute to this situation, including the prevalence of young workers among this group, their often low level of qualifications and their frequent use in sectors more exposed to risks.
Most EU member states comply with the Directive in that they have adopted provisions to the effect that their health and safety legislation applies to all workers regardless of the nature of their contract, thereby affording temporary agency and fixed-term workers the same legal rights as other workers. However, in terms of the Directive's practical implementation, it is questionable whether or not this legal solution is always sufficient to give these workers the same level of health and safety protection at the workplace.
The Commission will pay particular attention to the problems identified and pursue any cases or complaints that may be addressed to it, in order to ensure full implementation of the Directive across all member states. It will also continue to pursue the objective of improving the health and safety of fixed-term and temporary agency workers by:
- enforcing EU health and safety legislation and applying it to all workers regardless of their type of contract;
- implementing the EU's 2007-2012 health and safety strategy;
- developing analytical tools and policies focused on the particular situation of fixed-term and temporary agency workers in the context of the next EU health and safety strategy; and
- conducting detailed analysis of the transposition across the EU of the 2008 Temporary Agency Work Directive - which is due by December 2011 - particularly with regard to those provisions that may have an impact on the prevention of health and safety risks (such as access to training and information requirements).
This article was written by Mark Carley, international editor.
International policy, practice and law, October 2011