Agency Workers Regulations

Alana Jones

Jones Cassidy Jones Solicitors

Aim: To Explain

• Scope of the Regulations

• Day one rights

• Rights conditional upon qualifying period

• Operation of 12 week period

Aim: To Explain

• Anti-avoidance provisions

• Protection related to maternity

• Scope for derogation: permanent employment

• Enforcement of rights/potential liabilities

Aim: Suggestions

Action points which might assist organisations to prepare for changes

ahead.

Scope of the Reg’s

Regulation 3 defines “agency worker”.

Regulation 4 defines “temporary work agency”.

Scope of the Reg’s

Covers

• worker (W) supplied to hirer (H)

• to work temporarily

• under H’s supervision & direction

• contract between W and supplying agency (A)

Scope of the Reg’s

Within scope:– W supplied by intermediary– W having contract with umbrella company

Outside scope:– Genuinely self-employed in business on

own account– Managed service contracts

Day 1 Rights

• Apply from start of assignment

• H bears responsibility

• Only H will be held liable if breach

Collective Facilities & Amenities

Regulation 12(1)

W has during an assignment the right to be treated no less favourably than a comparable worker re the collective facilities and amenities provided by H.

Collective Facilities & Amenities

Include

• canteen or other facilities

• childcare facilities

• transport services

Collective Facilities & Amenities

Comparable worker

• (contemporaneous?) employee of H

• engaged in same/broadly similar work

• similar level of skills and qualifications?

• may be based at different establishments

Collective Facilities & Amenities

Limits

• no less favourable treatment: qualifying conditions can apply

• scope for justification on objective grounds

Information re Vacant Posts

Regulation 13

W has right to be informed by H of any relevant vacant posts with H to give W the same opportunity as a comparable worker to find employment with H.

Information re Vacant Posts

Comparable worker

• employee of H

• engaged in same/broadly similar work

• similar level of skills & qualifications?

• at same establishment

Information re Vacant Posts

Limits

• May inform by general announcement in a suitable place.

• Parity re notification of relevant vacancies.

• No adjustment to selection criteria required.

Equal Treatment After QP

Regulation 5:

W entitled to same basic working & employment conditions as W would be entitled to for doing the same job had W been directly recruited by H.

Equal Treatment After QP

• Regulation 5 is subject to Regulation 7

• Regulation 7: completion of QP

Basic Working & Employment Conditions

Are

• Relevant Ts & Cs ordinarily included in contracts of H’s own workforce

• Can be collectively agreed Ts & Cs

• Includes variations after completion QP

Relevant Ts & Cs

• pay

• duration of working time

• night work

• rest periods

• rest breaks

• annual leave

Comparable Employee

Right fulfilled where W working under same relevant Ts & Cs as a comparable employee whose contract reflects Ts & Cs ordinarily included in contracts of comparable employees of H.

Comparable Employee

• engaged in same/broadly similar work

• similar level of qualification & skills (?)

• same establishment/different establishment

• can be former employee of H

• hypothetical?

“Pay”

• Broad definition subject to exceptions

• Include vouchers & stamps of fixed monetary value or capable of exchange for money, goods or services e.g.– luncheon vouchers– discount cards?

Exceptions to “Pay”

• occupational sick pay

• pension, allowance or gratuity re retirement or compensation for loss of office

• pay re maternity, paternity or adoption leave.

Exceptions to “Pay”

• redundancy pay

• payment re financial participation scheme

• payment not directly attributable to amount/quality of work done by individual

• payment for time off under Part 6 ERO

Exceptions to “Pay”

• guarantee pay (where lay off)

• loan advance/pay advance

• expenses payments

• payments made to individual not in capacity as worker

Bonuses

Excluded

• payment not directly attributable to amount/quality of work done by worker

• given to worker for reason other than the amount or quality of work done

12 Week QP

• W must work in same role with same H for 12 continuous calendar weeks during one or more assignments.

• Significantly limits impact of Regulations.

Calculating the QP

• change in job role

• supply by different agencies

• fractions of a week count

• no break of less than 6 weeks breaks the QP (but clock stops)

Calculating the QP

• certain longer breaks do not break the QP

e.g. up to 28 weeks of sickness; paternity leave

• maternity leave – W deemed to be working

• temporary cessation

Anti-Avoidance Measures

Regulation 9

is the most likely explanation for the structure of assignments the intention to prevent W from qualifying for right to parity?

Avoidance - Penalty

• Additional award of up to £5,000 per worker

Employed Agency Workers

Regulation 10

• scope to avoid right to equal “pay”

• right does not apply to W with permanent employment contract with H

• conditions to be fulfilled

Conditions to be Fulfilled

• permanent contract of employment with A

• certain terms to be included

• W to be offered at least 1 hour per week

Conditions to be fulfilled

• contract to state effect re right to “pay” parity

• protection against termination:

A to provide suitable work or minimum level of remuneration for 4 weeks

Maternity Rights

EG

• Paid time off for antenatal appointments.

• Protection where assignment ended on h & s grounds: A to offer alternative assignment or pay.

Liability

“Pay”, hours, rest breaks and leave (Reg 5)

: H or A may be held liable

: A has potential defence

: A can rely on information from H

Enforcement

• After QP W can request written information.

• If W considers treated in breach of Reg 5.

• Admissible in evidence.

Liability

H liable re:

• Information re job vacancies with H.

• Equal treatment re collective facilities & amenities.

Detriment/Dismissal

• Protection against dismissal by reason of enforcing rights

- protection against detriment by reason of enforcing rights.

Remedies

• compensation

• no award for injury to feelings

• additional award where structure of assignments intended to circumvent right to parity

Action Points

• review notification arrangements for job vacancies

• review provision of collective facilities and amenities

• consider issue of “comparable” worker – check job descriptions & person spec’s

Action Points

• communication with agency is key

• review bonus arrangements

Perspective

• Reg’s do not confer employment status

- unfair dismissal

- redundancy payment

- occupational sick pay, maternity benefits, access to pension scheme, profit sharing and some bonuses.

Thank you