Equal treatment for temporary agency workers
On 12 May 2022, the EU Court of Justice delivered a ruling on a Portuguese case concerning two temporary agency workers made available to a user undertaking for a period of just over two years.
Under the specific legislation applicable to temporary employment, when their contract came to an end, both employees received compensation corresponding to 44 days of paid leave, whereas if they had been recruited directly by the user undertaking to do exactly the same job there for the same period of time, they would have been entitled to 67 days and 65 days respectively.
Article 5 of Directive 2008/104 of 19 November 2008 on temporary agency work states that “the basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.” According to the directive, these “basic working and employment conditions” include binding general provisions in force at the user undertaking, relating among other things to “rest periods” and “holidays”.
The Court of Justice holds that this notion of “basic working and employment conditions” must be interpreted “as meaning that it includes an amount of compensation which an employer is obliged to pay a worker on account of the termination of the latter’s temporary agency employment, in respect of days of paid annual leave not taken and the corresponding holiday bonus pay”.
Excluding such compensation “would be contrary to the objectives” pursued by the directive, given that, among other things, it would diminish “the scope of the protection granted to temporary agency workers in terms of equal treatment” (see press release).
(Article published in IR Notes 186 – 18 May 2022)
