The Agency Worker Regulations 2010
Introduction
The Regulations are due to come into force on 1 October 2011 and, for the first time, will give temporary workers a right not to be treated less favourably than permanent employees in terms of their basic working and employment conditions, subject to a 12-week qualifying period of service with any hirer. Workers will also have rights to certain facilities and benefits from day one of an assignment.
The ‘Temporary Work Agency’ and ‘Agency Worker’
The Regulations will apply to those organisations who supply workers to hirers for temporary work (including umbrella companies and intermediary organisations). An agency worker is defined as someone who is supplied by a temporary work agency, to work temporarily for and under the supervision and direction of a hirer and who has a contract of employment or any other contract to perform work and services personally for a temporary work agency.
Those individuals who are genuinely self-employed contractors will not be covered by the Regulations.
The Right to Equal Treatment
The agency worker will be entitled to the same basic working and employment conditions as they would have been entitled to for doing the same job had he been recruited directly by the hirer.
To establish less favourable treatment, the agency worker will have to compare themselves to a directly-recruited comparator (whether real or hypothetical) and then identify the terms and conditions which are ordinarily included in such a person’s contract.
If the hirer can show that an actual comparator was working under the same relevant terms and conditions, and those conditions are ordinarily included in a comparators’ contracts, a hirer will be deemed to have complied with the equal treatment conditions. The comparator must be carrying out the same or broadly similar work within the organisation.
The 12-Week Qualifying Period
The right to equal treatment will not apply until an agency worker has undertaken the same role, whether on one or more assignments, with the same hirer for 12 continuous calendar weeks. If a worker has been engaged on an assignment for any part of a week, this is counted.
Continuity will be broken if the worker starts a new assignment with the hirer where “the work or duties that make up the whole or main part of that new role are substantively different form the work or duties that made up the whole or main part of the previous role”.
Guidance will be issued on the meaning of “substantively different” but it is likely to apply to such factors as duties, responsibilities, skills, attributes, location and the identity of management.
If there is a break of at least 6 weeks either during or between assignments, continuity will be broken. If the break is for less than 6 weeks, continuity is merely suspended. Continuity will also be suspended in case of sickness absence up to 28 weeks, annual leave, jury service of up to 28 weeks and leave by reason of custom or practice e.g. teachers during a summer break.
Continuity will continue to accrue where a worker is away for certain reasons relating to pregnancy, childbirth or maternity for up to 26 weeks after the birth of the child, and where a worker is on statutory or contractual maternity, paternity or adoptions leave.
Basic Working and Employment Conditions
Pay – meaning any sums payable to a worker of the hirer in connection with the worker’s employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment. This also therefore includes shift allowances, overtime payments, unsocial hours premiums and bonuses linked to personal performance e.g. output-related bonuses.
Pay does not extend to occupational pensions or occupational sick pay; although from 2012 workplace pension provisions will come into force to benefit agency workers. Pay also does not include redundancy and notice pay.
The Regulations will allow hirers to make a payment in lieu of holiday entitlement which is in excess of the statutory minimum (5.6 weeks). Further guidance is expected on this in the near future.
Working time and holiday rights – workers will be entitled to rest breaks of the same duration and frequency, and the same entitlement to annual leave.
Entitlements from Day One of an Assignment:
Employment Vacancies - an agency worker will have the right to be told of any ‘relevant vacancies’ in the hirer during an assignment, in order to be given the same opportunity as a comparable worker to find permanent employment with the hirer.
Access to On-Site Facilities - an agency worker has the right not to be treated less favourably than a comparable worker in the hirer’s establishment in relation to ‘collective facilities and amenities’. This includes canteens or similar facilities, childcare facilities and the provision of transport services. A comparison with a predecessor will be allowed to establish less favourable treatment.
Pregnant Women and Mothers
Subject to a 12-week qualifying period, an agency worker will have the right to take reasonable time off during working hours to attend ante-natal appointments, subject to giving notice and providing evidence. In such circumstances, the worker will be entitled to be paid during her absence at the appropriate hourly rate.
Subject to a 12-week qualifying period, hirers are under a duty to make adjustments to protect agency workers from risks if they are pregnant, have recently given birth or are breastfeeding. If this is not reasonable or the risk will not be removed, the agency would have to remove the worker from that position and offer appropriate alternative work on similar terms and conditions. The obligation lasts for the duration of the original assignment. If no alternative can be found, the agency will be required to pay the worker for the remainder of the original assignment, unless the worker has unreasonable refused a suitable alternative.
Anti-Avoidance Provisions
The Government has reacted to concerns over abuse of the new provisions. As a result, an agency worker will still be entitled to be treated equally where a structure of assignments develops aimed at preventing workers from acquiring equal rights. Factors such as the length and number of the assignments, the difference in roles undertaken and the breaks between assignments will be taken into account, and awards can be increased by up to £5,000.00 where there has been a breach of this provision.
Enforcement and Remedies
Agency workers will have the right to bring various claims in the Employment Tribunal where there has been a breach of the Regulations. These claims include a where a worker has been dismissed or subjected to a detriment for exercising his rights under the Regulations, where a worker has been treated less favourably than an actual or hypothetical comparator with regard to his basic employment and working conditions, and where a worker has been denied access to collective facilities and amenities.
In terms of remedies, an Employment Tribunal can made a declaration, order payment of compensation and make recommendations for action to be taken. Compensation payable by an agency or a hirer will be “just and equitable”; the extent of each party’s responsibility will be assessed and the level of compensation will take into account the nature of the breach, any financial loss suffered and any expenses reasonably incurred as a result. Claims where a detriment is alleged allow an award for injury to feelings (normally attributable to discrimination cases) to be made.
Further information on AWR can be found by following the links below:
http://www.bis.gov.uk/policies/employment-matters/strategies/awd
http://www.berr.gov.uk/files/file53058.pdf
Should you have any queries, please feel free to speak to one of our directors on 01274 853200.
