The four classic legal motives
For years now, agency work has only been possible if one of the four legal motives are present for the company that uses it: Firstly, to replace a permanent employee whose contract has been suspended owing to e.g. sickness, time credit or maternity leave; secondly, to replace a permanent employee who has left; thirdly, a temporary increase in the volume of work; fourthly, for incidental work such as stock-take or trade show.
From agency work to permanent employment
Having evaluated the agency colleague during their temporary period, they are often taken on permanently by the company in due course. As ever, the legislator is still catching up with reality, but this was put right in law on 26 June 2013. Since 1 September 2013, there has been a new legal motive for agency work: “intake”.
Intake as a new legal motive
Businesses can now consciously hire an agency worker with the sole aim of verifying their suitability for use in the role permanently. In order to prevent companies from making endless use of agency work for a particular vacancy, some guarantees are built in.
Guarantees to combat misuse
A maximum of three attempts can be made to fill an individual vacancy using agency workers. An agency contract must also have a minimum duration of 1 week to a maximum of 6 months, and include the number of attempts to fill the vacancy. The total duration of agency work for the same vacancy may not exceed 9 months. In addition, the trade union delegation must be informed in advance. Please note, there is no need to ask the trade union delegation’s permission.
Where agency workers are ultimately taken on permanently via the intake motive, it must not involve a temporary contract. Also, the length of the former agency contract must be counted towards any corporate rules that are based on length of service, such as remuneration and group insurance. This length must also be subtracted from any probationary period in the permanent contract. Finally, the duration of the agency work must be included as length of service when determining any redundancy scheme payments, on the condition that the permanent recruitment took place no later than 7 days following the agency work and was to fill the same role.
The importance of following the rules in respect of the agency worker motives correctly cannot be overstated. Indeed, the sanction is that a permanent employment contract arises between the company in question and the worker.