Agency Workers Martin Hamilton, Partner Gary Hay, Partner

1. Agency Workers Martin Hamilton, Partner Gary Hay, Partner

2. Agenda 09.30 Temporary and flexible staff: legal status   09.50 The Agency Workers Regulations 2010: an update and guidance   10.15              Agency workers post-Francis – some practical considerations   10.30           Coffee   10.50 Case studies   11.20 Q&A   12.00                 Close/Lunch

3. Temporary and Flexible Staff – Legal Status

4. Employment Status of Agency (1) • Dacas v Brook Street Bureau [2004] • Mrs Dacas worked at mental health hostel run by Wandsworth Council for five years • Supplied by Brook Street throughout • Long-term agency supply arrangement likely to amount to employment by the end user

5. Employment Status of Agency (2) • James v Greenwich Council [2008] • Ms James provided to the Council by agency to work as a support worker. • Claimed unfair dismissal against Council when it brought her engagement to an end • Court said: key question is whether it is necessary to imply a contract of employment with the end user. Factors here should be:

6. Employment Status of Agency (3) • James v Greenwich Council [2008] contd • Are the agency arrangements genuine? • Can the end user insist on the provision of a particular worker, or not? • Who pays the worker? • Do the end user’s Ts&Cs and policies apply directly to the worker, or not?

7. Employment Status of Bank (1) • Ready Mixed Concrete v Minister of Pensions [1968] • In return for payment, an individual provides work and skills to perform a service • In doing so, agrees to be subject to control of the organisation to which provides service • Overall, the contract is consistent with it being an employment contract

8. Employment Status of Bank (2) • Ready Mixed Concrete v Minister of Pensions [1968] • In other words: • Is the individual obliged to accept work and perform that work him/herself? • Is the Trust obliged to provide work? • This is the test of mutuality of obligation

9. Employment Status of Bank (3) • Bank - Typical Scenarios • Bank work is performed in addition to the substantive employment • Bank work is taken up infrequently and/or flexibly • Bank work is undertaken on a long-term basis

10. Legal Liability Issues: Agency & Bank Workers • Even where employees, they are protected: • Under the Part-Time Workers Regulations • Under the Working Time Regulations • Against discrimination (Equality Act 2010 rights) • If whistleblowers

11. Employment status and the bank - summary • Bank or agency? • If Agency – consistent case law is that NHS Trusts, as end users, are not the employer • If Bank – minimum status of bank members will be that of workers; potentially temporary employees, or permanent employees

12. Fixed term contracts • Fixed period - project • Renewal • Employment rights • Redundancy • Fixed Term Workers Regulations

13. Locum Consultants (Medical) • Locum Consultants are employees but not permanent • NHS Appointment of Consultants Regulations allows for appointment on six month + six month basis • Substantive Consultant recruitment must in law be subject to Advisory Appointments Committee (AAC) process • As a result, Locum Consultants will rarely if ever acquire full employment rights

14. The Agency Workers Regulations 2010

15. Agency Workers Regulations 2010 • Came into force on 1st October 2011 • BIS Guidance – published in May 2011

16. Scope of the Regulations • Apply to: • “Workers with a contract of employment or employment • relationship with a temporary work agency who are assigned • to user undertakings to work temporarily under their • supervision and direction” • Agency workers who find temporary work with a hirer through a temporary work agency

17. Temporary work agency • Regulation 4 • Employment business which supplies workers to hirers for temporary work • Not an employment agency which finds permanent employment for individuals

18. Agency worker • Regulation 3(1) – individual who is supplied by a temporary work agency to work for and under the direction of a hirer • Is employed or otherwise engaged by the agency • Excludes self-employed • What about bank staff? • Guidance suggests unlikely to be covered • Unless Bank supplies staff to third parties

19. Hirer Regulation 2 “a person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person”

20. Rights under the regulations • Right to equal treatment (Regulation 5) • “the same basic working and employment conditions as the agency worker would have been entitled to for doing the same job had the worker been recruited by the hirer” • Comparator – directly recruited, real or hypothetical, with identified terms and conditions ordinarily in that person’s contract

21. Basic working and employment conditions • Duration of working time • Breaks • Rest periods • Length of night work • Annual leave • Pay

22. Pay (1) • Included payments: • Overtime • Shift allowances • Holiday pay • Unsocial hours premiums • Performance-linked bonuses, vouchers

23. Pay (2) • Excluded payments: • Occupational sick pay • Contractual notice pay • Contractual redundancy pay • Payments for loss of office • Maternity, paternity and adoption pay • Payments for statutory time off

24. 12 week qualifying period • Right to equal treatment does not apply until the worker has undertaken • The same role • Whether on one or more assignments • With the same hirer • For 12 continuous calendar weeks

25. The same role A new assignment where: “the work or duties that make up the whole or the main part of that new role are substantially different from the work or duties that made up the whole or main part of the previous role” …will break the qualifying period

26. Breaks in assignments (1) • Continuity provisions • A break of at least 6 calendar weeks • Periods away from work which will not break the qualifying period: • Sickness absence up to 28 weeks • Statutory or contractual time off or leave e.g. annual leave • Jury service up to 28 weeks • Strike, lock out, industrial action • Temporary cessation of work by hirer

27. Breaks in assignments (2) • Pregnancy and childbirth • Statutory or contractual maternity, paternity or adoption leave • Anti-avoidance provisions - £5,000 penalty

28. ‘Day one’ rights • Information about vacancies • Access to onsite facilities and amenities • Canteen • Childcare • Transport • Further examples in Guidance • Objective justification defence • Is there a good reason for treating the agency worker less favourably? (Guidance)

29. Enforcement • Right to request a written statement • Shared liability between temporary work agency and hirer • Apportioned by the Tribunal

30. Claims • Protection from detriment • 3 month time limit • Award of compensation • Recommendation to take reasonable action

31. The Swedish Derogation (1) • Regulations 10 and 11 • Exemption from the right to equal treatment in relation to pay (including holiday pay) where the temporary work agency provides the agency worker with a permanent contract of employment (with minimum requirements) and pays the employee a minimum amount between assignments when they are not working • The employee will still be entitled to equal treatment in relation to the provisions of the Regulations

32. The Swedish Derogation (2) • For Swedish derogation to apply, agency worker must have employment contract with temporary work agency which was entered into “before the beginning of the first assignment under that contract” • Beneficial to hirers • But agencies will pass on costs?

33. Agency workers post-Francis

34. Post-Francis - cost savings • The flexible work-force • 24/7 provision of care • Greater competition

35. Post-Francis – cultural change • Cultural change • Openness • Whistleblowing

36. Post-Francis – performance and appraisal • Performance management • Appraisal • Pay and reward

37. Case law update

38. Bray and ors v Monarch Personnel Refuelling (UK) Ltd [2012] (1) • Claimants tanker drivers employed by M on zero hours contracts and assigned to BP • Most had worked continuously for BP on series of assignments for long periods • Not assigned by M to any other hirers • Due to introduction of AWR, BP terminated all current assignments from 30 November 2011 • Fresh assignments from 1 Dec but only for drivers working under Swedish derogation

39. Bray and ors v Monarch Personnel Refuelling (UK) Ltd [2012] (2) • M issued drivers with new “guaranteed hours contracts” • Drivers required to give up any right to equal pay with BP’s permanent drivers in exchange for pay between assignments under Reg 10 • Drivers signed contracts and brought claims arguing contracts did not fall within Swedish derogation • Contracts not issued before “beginning of first assigment” therefore entitled to pay parity with BP’s permanent workers

40. Bray and ors v Monarch Personnel Refuelling (UK) Ltd [2012] (3) • ET held contracts were Reg 10 compliant and dismissed claims • “Assignment” doesn’t necessarily refer to entire continuous period of hire • Drivers engaged on series of separate assignments • Between hirers

41. Bray and ors v Monarch Personnel Refuelling (UK) Ltd [2012] (4) • New contracts were issued and signed in November i.e. before “first assignment” under new contract on 1 December • Swedish derogation therefore applied • ET rejected argument that Swedish derogation should only apply where agency workers move

42. What to take away • First reported case on scope of Swedish derogation • First instance – but suggests “pay between assignments” not required at outset • Drivers might have had unfair dismissal claims against M • Most agency workers won’t have sufficient continuity of service

43. Case studies

44. Case studies (1) • The Trust has been employing a worker supplied by a temporary work agency to carry out some clerical work. The worker is hired to work at one site for a six week period. After a break of four weeks, she is supplied to the Trust again, to carry out the same duties at another site. She claims she is paid less than a permanent employee. • Does the individual have any rights under the Regulations? If so, how would she enforce them? Would the position be different if the worker was hired to carry out a wholly different role?

45. Case studies (2) • The Trust’s canteen facilities are contracted out to a third party provider. The contractor manages the entire operation of the canteen and has control over the catering staff, who work exclusively on the Trust’s premises. One of the catering staff based at the Trust’s premises is absent on sick leave. She is replaced by a worker supplied to the catering company by a temporary work agency. • Does the Trust have any obligations to any of these workers under the Regulations?

46. Case studies (3) • A nurse is supplied to the Trust by a temporary work agency for a four week period. In the second week of her assignment, she informs her line manager that she is pregnant and needs to take time off later that week to attend an antenatal appointment. She also says that she should be entitled to park in the staff car park. • What are the Trust’s obligations under the Regulations?

47. Case studies (4) • After her initial four week assignment, the Trust re-hires this individual for a further four months. After two months’ she is absent from work for a fortnight with a pregnancy related illness. • What are the Trust’s obligations regarding sick pay?

48. Case studies (5) • The Trust is concerned not to allow agency workers to accrue rights under the Regulations. Accordingly, it introduces a policy whereby, subject to operational constraints, the usual length of assignments shall be 11 weeks or less, and no worker should be re-hired until a minimum of six weeks have expired since their previous assignment. • Could this cause any problems under the Regulations?

49. Some conclusions

50. Agency - Things to consider (1) • Audit – how many agency workers do you use? • Systems to track which agency workers you have used • Avoid workers gaining 12 weeks’ service? (but NB avoidance provisions and penalties) • Knowing which workers have gained rights