The Agency Workers Regulations 2010, which implement the Agency Workers Directive, will come into force on 1 October 2011. Their aim is to promote equal treatment and protection of agency workers in the UK. However, the principle of equal treatment will only apply to certain terms and conditions of employment relating to working time, holiday entitlement and pay.
The main provisions of the Regulations are set out below.
1. Who is an Agency Worker and a Hirer?
An agency worker is broadly defined as an individual who has a contract with a temporary work agency (TWA) but works temporarily and under the direction and supervision of the hirer. Genuinely self-employed individuals are excluded from the definition.
A hirer is a company, partnership, sole trader or a public body which is engaged in economic activity and which books agency workers via a TWA.
2. Access to Facilities and Amenities
The Regulations give an agency worker the same access to collective facilities and information on job vacancies as a comparable worker. This right will apply from day one of any assignment.
A comparable worker is a direct employee doing the same or broadly similar work as the agency worker and who is based in the same location. Importantly, if there is no comparable worker, there is no entitlement to equal treatment.
Examples of collective facilities include (but are not limited to) a canteen, crèche, toilets/shower facilities, transport services, common room, waiting room, mother and baby room, prayer room, food and drink machines and car parking.
This right does not give an agency worker enhanced rights. An agency worker does not have a right of access to such facilities if, for example, there is a waiting list, but must join the waiting list in the same way as direct employees.
A hirer will be able to justify not providing facilities to an agency worker if it can show that this was objectively justified. Such justification may include the cost of providing the facilities but that cost alone is unlikely to amount to justification according to guidance issued by the Department for Business, Innovation and Skills (BIS).
The Regulations also give an agency worker the right to be provided with information about any relevant job vacancy that would be available to a comparable worker.
3. Basic Working and Employment Conditions
After 12 weeks in an assignment, an agency worker will be entitled to the same basic terms and conditions of employment as if they had been employed directly by the hirer.
Basic terms and conditions include pay, holiday entitlement and working conditions.
Pay is broadly defined in the Regulations as money paid to the agency worker in connection with his or her employment. Pay includes basic pay based on the annual salary an agency worker would have received if recruited directly, overtime, holiday pay, bonuses directly attributable to the amount or quality of work done by the agency worker, childcare vouchers and discretionary bonuses. It excludes certain types of pay including occupational sick pay, occupational pensions, maternity or paternity pay, redundancy pay and notice pay.
The Regulations do not require the agency worker to be given an appraisal as part of the hirer’s existing appraisal structure for direct employees.
With regards to holiday entitlement, if a hirer would have given a more generous contractual leave entitlement to the agency worker if recruited directly to the same job, the agency worker is entitled to the same enhanced entitlement once the 12 week qualifying period has elapsed.
After the 12 week qualifying period, a pregnant agency worker will be allowed time off to attend antenatal appointments and classes. If a pregnant agency worker cannot continue in the same assignment for health and safety reasons, she will need to be found alternative sources of work. If no alternative can be found, the agency worker will have the right to be paid by the TWA for the remaining period of the assignment.
4. How to identify Basic Working and Employment Conditions
The requirement under the Regulations is to treat the agency worker as if he or she had been recruited directly to the same job.
Equal treatment does not apply to all terms and conditions that the agency worker would have received had they been recruited directly. It covers basic working and employment conditions which are normally set out in standard contracts, a pay scale or pay structure, a relevant collective agreement or a company handbook.
The test to be applied is an “as if” one: the agency worker is to be given the same relevant entitlements as if he or she had been recruited as an employee to the same job.
It is not necessary to look at a comparator. However, if a hirer does use an appropriate comparator and treats the agency worker in the same way as that employee, the hirer will be deemed to have complied with the Regulations.
5. The Qualifying Period
For the Regulations to apply, the agency worker must have worked for 12 continuous weeks in the same job with the same hirer. It is irrelevant how many hours in each week the agency worker works. Any change of TWA in the 12 week period will not affect the agency worker’s right to qualify for equal treatment under the Regulations.
An agency worker may also have more than one qualifying period running at the same time with different hirers, for example, if the agency worker works for more than one hirer each week for 12 consecutive weeks.
The agency worker will have to restart the qualifying period if
a) They begin a new assignment with a new hirer.
b) They stay with the same hirer but change to a different role. The whole or main part of the new role must be substantively different from the previous role.
c) There is a break between assignments with the same hirer of 6 weeks or more. Therefore, if an agency worker returns to work for the same hirer less than 6 weeks after a previous assignment, the previous assignment will count towards the qualifying period.
In some circumstances, a break of over 6 weeks will not cause the qualifying period to cease to run. These include sickness up to 28 weeks, jury service, a strike or lock-out and time off that relates to a statutory or contractual entitlement.
A break for pregnancy, childbirth, maternity leave, paternity leave or adoption leave will not stop the qualifying period from running.
6. Anti-avoidance measures
The BIS Guidance states that there is nothing in the Regulations preventing a hirer from having a practice whereby an agency worker is released from an assignment after 11 weeks. However, if a pattern emerges where an agency worker is constantly being hired for 11 weeks and then re-hired after a 6 week break, it is a matter for the Employment Tribunal whether such actions by the hirer amount to a deliberate attempt to avoid the effect of the Regulations. If the Tribunal finds that there was such a deliberate attempt, it can award compensation of up to £5,000 to the agency worker who will be deemed to have qualified for equal treatment.
7. Liability and enforcement of rights
An agency worker can bring a claim in the Employment Tribunal for a breach of the Regulations. If the claim relates to pay, holidays and working time, the TWA is liable for that failure to the extent that it is responsible for the breach of the Regulations. The hirer will also be responsible to the same extent.
The hirer will be solely liable for any breach if the TWA can establish that it sought from the hirer the relevant information regarding equal treatment of the agency worker.
The hirer is solely liable for any breach in relation to access to facilities and information about job vacancies.
If the agency worker succeeds in his or her claim, the Tribunal will award compensation based on the agency worker’s loss. Compensation is subject to a minimum of two weeks’ pay. Awards in respect of injury to feelings are expressly excluded.
The time limit for bringing a claim under the Regulations is within three months of the act complained of.
For enterprises that regularly use agency workers, the Regulations will have a big impact on the use of such workers. Employers should review their policies and practices regarding recruitment of agency workers and adjust them accordingly to ensure compliance with the Regulations from 1 October 2011. Employers will also have to be careful about re-hiring agency workers who have worked less than the 12 week qualifying period in case they are deemed to have deliberately attempted to avoid the effect of the Regulations.
The BIS Guidance can be found here.