Agency Workers Regulations 2010: Are you prepared?
Earlier this month, the Department for Business, Innovation and Skills (BIS) published draft guidance on the Agency Workers Regulations 2010 (the “Regulations”), which will come into force on 1 October 2011. The Regulations will apply to agency workers who have “a contract of employment or employment relationship with a temporary work agency”, including those contracted via an "umbrella company" or other intermediary. They will not apply to those who are self-employed or employed on a managed service contract.
The Regulations introduce a right to equal treatment for agency workers. The right to equal treatment does not apply until an agency worker has undertaken the same role with the same hirer for 12 continuous calendar weeks, whether this has been on one assignment or more. Following this qualifying period, agency workers will be entitled to the same basic working and employment conditions as they would have been entitled to had they been recruited directly by the hirer.
The agency worker will not be entitled to equal treatment in respect of all terms and conditions, but just the basic working and employment conditions. In practical terms, this means that any basic terms or conditions that apply to the particular role filled by the agency worker, or apply across all staff, will also apply to the agency worker after they have completed the 12 week qualifying period. This includes pay, annual leave, rest breaks, duration of working time (including night work), and paid time off for ante natal appointments.
The protection extends to bonuses or commission calculated by reference to individual performance (as this would fall into the category of “pay”), but would not extend to flat rate bonuses or bonuses calculated on company performance only. One-off bonuses which are discretionary and non-contractual would also not be covered, as long as payment of such bonuses has not become the standard practice or custom of the business.
The entitlement would also not extend to other terms of employment such as notice pay, occupational sick pay, occupational pensions, share option schemes or other financial participation schemes, or benefits in kind.
Those employers believing that they can escape the provisions of the Regulations by rotating the worker so that they do not complete 12 weeks within the same role will be sadly mistaken. Anti-abuse provisions are included in the Regulations which prohibit certain assignment structures, and breach of this provision could lead to a liability of up to £5,000. This will mean that the worker will still be protected where it appears that the intention was to prevent the worker from being entitled to equal treatment, even where they have completed two or more assignments with the hirer (including where one or more of those assignments was with a connected hirer) or have on at least two occasions moved from one role to another. It will be a matter for an Employment Tribunal to determine whether the motivation of the hirer was to deprive the agency worker of equal treatment.
Agency workers will also have some entitlements from the outset of their assignment (i.e. before the completion of the 12 week qualifying period). This will include the right to be told of any relevant vacancies for permanent employment in the hirer during their assignment. Agency workers will also have the right to access collective facilities and amenities such as a staff canteen, childcare facilities or transport services (e.g. car parking), unless less favourable treatment can be objectively justified.
Agency workers can bring a claim against both the hirer and the temporary work agency, but liability is not joint and several. An Employment Tribunal may determine the degree to which any party may be responsible for the infringement. Agencies will generally be liable for any breaches of rights in relation to an agency worker's basic working and employment conditions unless they have taken reasonable steps to obtain relevant information from the hirer about its basic working and employment conditions and acted reasonably in determining whether the worker has the same basic working and employment conditions after the qualifying period.
If a hirer fails to cooperate with or provide the relevant information to an agency or prevents the agency worker from accessing vacancies or collective facilities and amenities, it shall be liable for the breach of the Regulations.
If you would like further advice regarding the Agency Workers Regulations 2010, please contact Matthew Cranton, email@example.com.
For the BIS Draft Guidance on the Regulations, please visit http://www.bis.gov.uk/assets/biscore/employment-matters/docs/d/11-830-draft-agency-workers-guidance.pdf
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