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The Agency Workers Regulations 2010 ____________________ Esther Martin CM Murray LLP

The Agency Workers Regulations 2010 ____________________ Esther Martin CM Murray LLP. THE AGENCY WORKERS REGULATIONS 2010. Implementation of European legislation: Temporary Agency Workers Directive 2008/104/EC Due to come into force 1 October 2011.

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The Agency Workers Regulations 2010 ____________________ Esther Martin CM Murray LLP

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  1. The Agency Workers Regulations 2010 ____________________ Esther Martin CM Murray LLP

  2. THE AGENCY WORKERS REGULATIONS 2010 Implementation of European legislation: Temporary Agency Workers Directive 2008/104/EC Due to come into force 1 October 2011

  3. Who will the regulations apply to? Agency Workers: supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and have a contract with the temporary work agency Regulation 3(1)

  4. Access to employment, facilities and training From day 1 of the assignment hirers must provide: Information about job vacancies; and Access to collective facilities, e.g. Canteen Communal break areas Childcare facilities Car parking Prayer room

  5. Twelve week qualifying period “To complete the qualifying period the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments.” Regulation 7(2) Continuity can be broken or suspended in certain specific circumstances

  6. Anti-avoidance provisions The Regulations contain a non-exhaustive list of factors to be taken into account whether a structure of assignments is intended to deprive the agency worker of rights. Regulation 9(5) Additional award of up to £5,000 where a hirer and/or agency are found to have breached the anti-avoidance provisions. Regulation 18(14)

  7. Agency Worker Rights (after week 12) An agency worker (A) is entitled to: “… the same basic working and employment conditions as A would have been entitled to for doing the same job had A been recruited by the hirer – Other than by using the services of a temporary work agency; and At the time the qualifying period commenced.” Regulation 5(1)

  8. “basic working and employment conditions” Pay Duration of working time Length of night work Rest periods Rest breaks Annual leave Comparator required Terms must be ‘ordinarily included’

  9. Pregnant women and nursing mothers Subject to the 12 week qualifying period Agency workers are entitled to: reasonable time off during working hours to attend ante-natal appointments payment from employment agency during her absence She may lodge a tribunal claim if a request is unreasonably refused Duty to make reasonable adjustments on hirers

  10. Practical tips for hirers Always ask: Is the worker a temp from an agency? Have they ever worked for you (or a connected business) previously? Are they likely to qualify for equal treatment? How long is the assignment likely to last? What benefits and other terms will have to be offered and when?

  11. Default Retirement Age ______________________ Bettina Bender CM Murray LLP

  12. Default Retirement Age WHAT ISN’T CHANGING? Objective justification: Employers may still operate a compulsory retirement age except that from April 2011 they will need to objectively justify it (as they have up to now for retirement ages below 65) WHAT IS CHANGING? Employers will no longer be able to use the DRA of 65 to maintain a compulsory retirement policy for their workforce: • From6 April 2011: No new notifications of retirement on basis of DRA to be issued • 1 October 2011: DRA and statutory “duty to consider”retirement procedures will be abolished

  13. Option 1: Having a Compulsory Retirement Age • Legitimate aim • Workforce planning/succession • Facilitating the recruitment and retention of younger employees • “Collegiality” • Increased costs e.g. pensions and benefits (Seldon v Clarkson, Wright & Jakes and another) • Proportionate - Balancing act - Why that cut off point? - Criterion other than age? - Consistency? - Evidence European Cases (Wolf, Peterson, Rosenbladt) v UK Cases (Martin, Hampton, Baker)

  14. Option 2: Removing the Compulsory Retirement Age • Follow a fair procedure and rely on one of the 5 other potentially fair reasons for dismissal: • Conduct • Capability/Qualifications • Redundancy • Statutory restriction • “Some Other Substantial Reason” • Change in corporate culture • Adequate Performance Procedures • Using appraisal process to discuss future plans • Recruitment

  15. Option 1: Retaining an EJRA Document how the Company has come to its decision Identify business needs and legitimate aim Compile evidence to show why that age has been decided upon and why other criterion cannot be used Consultation Exercise? Option 2: No Retirement Age Adequate Performance Procedures and appraisals in place Consider flexible working arrangements Ensure line managers know how to deal with long term sickness absence Next Steps/Issues to Consider • For all companies: • Amendments to contracts of employment, staff handbook, pensions and share schemes (good leaver/bad leaver status) • Training Requirements • Provision of benefits

  16. Positive Action Provisions under the Equality Act 2010______________ Esther Martin CM Murray LLP

  17. Political correctness gone mad? ‘WHITE MEN FACE JOBS BAN’ Daily Express, June 2008 ‘Employed because I was black: Positive discrimination robs people of their drive to succeed’ Daily Mail, April 2011

  18. Equality Act 2010General Rule:Individuals should not be treated less favourably because of: Age Disability Race / nationality Religion or belief Gender reassignment Sex Sexual orientation Marriage or civil partnership Pregnancy and maternity

  19. Exceptions: pre-April 2011 Occupational Requirement Schedule 9 Disability / Pregnancy / Age s13(3)/ S13(6)(b)/ Schedule 9 General Positive Action S158

  20. s159: Recruitment and Promotion (part 1) Where an Employer reasonably thinks that persons with a particular protected characteristic are disadvantaged, or their participation in an activity is disproportionately low… …the Employer can treat a person with that relevant characteristic more favourably in recruitment and promotion.

  21. s159: Recruitment and Promotion (part 2) As long as: They are ‘as qualified as’ those others, and The Employer does not have a policy of treating such people more favourably

  22. “As qualified as”s159(4)(a) “Equal Merit” Qualifications vs Experience

  23. A few tips for employers: Positive action is voluntary s159 decisions should always be proportionate: consider where possible other ways of addressing under-representation of particular groups Criteria for any role should remain objective and the reasons for any decision should be documented carefully See ‘Quick Start Guide’ for more explanation (GEO publication)

  24. The Bribery Act 2010 _________________ Anna Birtwistle CM Murray LLP

  25. The Bribery Act 2010 • (Finally!) July 2011 • Issues for law firms: • Hospitality/gifts • Referrals • Instructing overseas counsel • Setting up abroad • Guidance: • Ministry of Justice • Joint Prosecution • Law Society • Transparency International

  26. Offences General Offences: • Paying bribes (“Active bribery”) (s.1) • Receiving bribes (“Passive bribery”) (s.2) Specific Offences: • Bribing a foreign public official (s.6) • Failure by a commercial organisation to prevent bribery: the “Corporate offence” (s.7)

  27. A “commercial organisation” will commit bribery if an “associated person” bribes another person for that organisation’s benefit. Strict liability Territorial reach Defence: “Adequate procedures” “Commercial organisations”: partnerships and LLPs, as well UK companies and overseas companies carrying on business in the UK “Associated person”: employees, agents, subsidiaries, intermediaries, joint venture partners The Corporate Offence

  28. Adequate Procedures Defence Government (MoJ) guidance, six principles: • Risk Assessment • Top level commitment • Due diligence • Clear, Practical and Accessible Policies and Procedures • Effective implementation • Monitoring and review

  29. Corporate hospitality • An established part of doing business • Lavish vs reasonable and proportionate • Motivation is key

  30. Penalties/Other Consequences Of Non-Compliance • SFO • Criminal sanctions (s.1, 2 & 6) • Unlimited fines • Debarment from tendering for public-sector contracts • Confiscation Orders (Proceeds of Crime Act) • Adverse publicity • Reputational damage

  31. Practical Tips • Policies • Anti-bribery, corporate hospitality and gifts, whistleblowing procedures • Training relevant staff • Top down commitment: Management board, Practice Managers and Partners • Assessment of risk • Which countries are the firm operating in and in which sectors? • Due diligence • Suppliers, agents, contractors • Investigation procedures and disciplinary sanctions • Appointing individual responsible for bribery issues

  32. The CM Murray LLP Team Clare Murray Managing Partner Bettina Bender Partner Charis Damiano Consultant Susanne Foster Senior Associate Esther Martin Associate Anna Birtwistle Associate

  33. CM Murray LLP 37th Floor One Canada Square Canary Wharf London E14 5AA +44 (0)20 7718 0090 www.cm-murray.com info@cm-murray.com Twitter: @CMMurrayLLP

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