The Agency Worker Regulations – an overview
As many will be aware, the Agency Workers Regulations 2010 come into force on 1 October 2011.
Thanks to David Buckle of Cubism Law for this helpful overview of the Agency Worker Regulations:
In essence, the new regulations entitle agency workers (including those supplied through an umbrella company or personal services company):
- to basic working and employment conditions that are no less favourable than employees recruited direct by the hirer after 12 weeks in the same role (“equal treatment”).
- to equal access to on-site facilities and information on permanent employment vacancies.
The Regulations also make some amendments to the maternity rights of agency workers.
When assessing equal treatment, the agency worker will have to compare themselves with a real or hypothetical directly-recruited comparator. The Regulations provide a defence to any allegation of unequal treatment if the hirer can identify an actual, currently working, comparator doing broadly similar work in the same organisation who is working under the same terms and those terms are ordinarily included in comparators’ contracts.
The agency worker is not entitled to equal treatment in respect of all terms and conditions, only “basic working and employment conditions”. The Regulations define “basic working and employment conditions” as:
- Pay, which includes basic pay holiday pay (including public and bank holidays), overtime pay, shift allowances, unsocial hour’s premiums or bonuses.
- Duration of working time.
- Length of night work.
- Rest periods.
- Rest breaks.
- Annual leave.
Length of Service
Equal treatment does not apply until an agency worker has undertaken the same role, whether on one or more assignments, with the same hirer for twelve continuous calendar weeks. The time that counts toward this period will be broken if the agency worker starts a new assignment with the same hirer which is “substantively different” from the previous role. Members should note, unless agencies provide a written description of this new work, there will be a presumption that the worker is working in the same role. Continuity is also broken where there is a break of at least six calendar weeks either during or between assignments. Where the break is for less than six weeks, continuity is merely suspended. Some other absences from work will merely suspend continuity. For example:
- Sickness absence of up to 28 weeks.
- Statutory or contractual time off or leave, for example, annual leave.
- Jury service of up to 28 weeks.
- A temporary cessation in the hirer’s need for any worker (for example, teachers during a summer break).
- A strike, lock-out or other industrial action.
Continuity continues to accrue for absences related to pregnancy, childbirth, maternity, paternity or adoption leave.
To avoid attempts to circumvent the Regulations, there are specific provisions which give an agency worker the right to be treated as if they were entitled to equal treatment if a structure of assignments develops, which is intended to prevent the worker from acquiring equal rights. This is to cover the systematic removal of agency workers before the twelve week period is completed. In addition to the potential claims set out below, Employment Tribunals will be able to make an additional award of up to £5,000 where a hirer and/or agency are found to have breached these provisions.
Permanent contracts providing pay between assignments (“Swedish Derogation”)
Under the Regulations, the right to equal treatment with regard to pay will not apply to an agency worker who has a permanent contract of employment with a temporary work agency if:
- The employment contract was entered into before the beginning of the first assignment under that contract and includes written terms covering:
- the minimum scale or rate of remuneration or the method of calculating remuneration,
- the location or locations where the agency worker may be expected to work,
- the expected hours of work during any assignment,
- the maximum number of hours of work that the agency worker may be required to work each week during any assignment,
- the minimum hours of work per week that may be offered to the agency worker during any assignment provided that it is a minimum of at least one hour, and
- the nature of the work that the agency work may expect to be offered including any relevant requirements relating to qualifications or experience.
- The employment contract contains a statement that the effect of entering into it is that the employee does not, during the currency of the contract, have any entitlement to the rights conferred by equal treatment in so far as they relate to pay.
- During any period during which the agency worker is not working temporarily for and under the supervision and direction of hirer but is available to do so:
- the temporary work agency takes reasonable steps to seek suitable work for the agency worker.
- if suitable work is available, the temporary work agency offers the agency worker to be proposed to a hirer who is offering such work, and
- the temporary work agency pays the agency worker a minimum amount of remuneration in respect of that period (which is 50% of the agency worker’s pay in the preceding 12 weeks or the National Minimum Wage)).
- The temporary work agency does not terminate the employment contract until it has complied with its obligations when the agency worker is not working for an aggregate of not less than four calendar weeks during the contract.
The reference to a minimum number of hours of work of at least one hour excludes the possibility of a zero-hours contract being provided to meet the derogation requirements.
If an agency worker believes they are not receiving equal treatment, they can ask for a written statement from their agency of the following within 28 days of a written request:
- Relevant information relating to the hirer’s basic working conditions.
- The factors the agency considered when determining the basic working conditions which apply to the agency worker.
- Where relevant:
- why a person is considered a comparable employee; and
- the basic working conditions in force at the hirer that apply to that employee.
If the agency worker has not been provided with the above within 30 days, the agency worker can request the information directly from the hirer. The hirer must then provide the information in writing within 28 days of a further written request.
Infringement of rights
An agency worker who believes their rights to access to employment vacancies and collective facilities or training have been infringed may make a similar written request to the hirer for a written statement within 28 days of the rights of comparable employees and the reasons for their treatment.
Failure to respond to the above requests will not, itself, be unlawful, but an Employment Tribunal will be entitled to draw adverse inferences against a party that refuses to respond or provides an inadequate response.
Generally, the agency will be responsible for any breaches of equal treatment to the extent that it is responsible for them. However, agencies will have a defence if they can show that they took “reasonable steps” to obtain information about terms ordinarily included in the hirer’s contracts for comparable employees and why those employees are comparable, and, when they received such information, acted “reasonably” in determining the agency worker’s terms after the qualifying period. This is likely to require changes to the terms agencies have with hirers.
The hirer will be responsible for any breach to the extent that it is responsible, taking into account the steps it has taken to enable the agency to provide information to the agency worker. The hirer will be solely responsible for any breach of access to employment vacancies and collective facilities.
An agency worker can bring claims in the Employment Tribunal for breach of the Regulations. These include:
- The right not to be dismissed for making allegations, giving evidence, asserting rights or bringing proceedings under the Regulations.
- The right not to be subjected to detriment on the above grounds
- A claim that the equal treatment rights have been infringed.
- A claim that rights of access to employment or facilities have been breached.
This was written by David Buckle of Cubism Law
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