Agency Workers Regulations

1. Agency Workers Regulations Alana Jones Jones Cassidy Jones Solicitors

2. Aim: To Explain • Scope of the Regulations • Day one rights • Rights conditional upon qualifying period • Operation of 12 week period

3. Aim: To Explain • Anti-avoidance provisions • Protection related to maternity • Scope for derogation: permanent employment • Enforcement of rights/potential liabilities

4. Aim: Suggestions Action points which might assist organisations to prepare for changes ahead.

5. Scope of the Reg’s Regulation 3 defines “agency worker”. Regulation 4 defines “temporary work agency”.

6. Scope of the Reg’s Covers • worker (W) supplied to hirer (H) • to work temporarily • under H’s supervision & direction • contract between W and supplying agency (A)

7. Scope of the Reg’s Within scope: • W supplied by intermediary • W having contract with umbrella company Outside scope: • Genuinely self-employed in business on own account • Managed service contracts

8. Day 1 Rights • Apply from start of assignment • H bears responsibility • Only H will be held liable if breach

9. Collective Facilities & Amenities Regulation 12(1) W has during an assignment the right to be treated no less favourably than a comparable worker re the collective facilities and amenities provided by H.

10. Collective Facilities & Amenities Include • canteen or other facilities • childcare facilities • transport services

11. Collective Facilities & Amenities Comparable worker • (contemporaneous?) employee of H • engaged in same/broadly similar work • similar level of skills and qualifications? • may be based at different establishments

12. Collective Facilities & Amenities Limits • no less favourable treatment: qualifying conditions can apply • scope for justification on objective grounds

13. Information re Vacant Posts Regulation 13 W has right to be informed by H of any relevant vacant posts with H to give W the same opportunity as a comparable worker to find employment with H.

14. Information re Vacant Posts Comparable worker • employee of H • engaged in same/broadly similar work • similar level of skills & qualifications? • at same establishment

15. Information re Vacant Posts Limits • May inform by general announcement in a suitable place. • Parity re notification of relevant vacancies. • No adjustment to selection criteria required.

16. Equal Treatment After QP Regulation 5: W entitled to same basic working & employment conditions as W would be entitled to for doing the same job had W been directly recruited by H.

17. Equal Treatment After QP • Regulation 5 is subject to Regulation 7 • Regulation 7: completion of QP

18. Basic Working & Employment Conditions Are • Relevant Ts & Cs ordinarily included in contracts of H’s own workforce • Can be collectively agreed Ts & Cs • Includes variations after completion QP

19. Relevant Ts & Cs • pay • duration of working time • night work • rest periods • rest breaks • annual leave

20. Comparable Employee Right fulfilled where W working under same relevant Ts & Cs as a comparable employee whose contract reflects Ts & Cs ordinarily included in contracts of comparable employees of H.

21. Comparable Employee • engaged in same/broadly similar work • similar level of qualification & skills (?) • same establishment/different establishment • can be former employee of H • hypothetical?

22. “Pay” • Broad definition subject to exceptions • Include vouchers & stamps of fixed monetary value or capable of exchange for money, goods or services e.g. • luncheon vouchers • discount cards?

23. Exceptions to “Pay” • occupational sick pay • pension, allowance or gratuity re retirement or compensation for loss of office • pay re maternity, paternity or adoption leave.

24. Exceptions to “Pay” • redundancy pay • payment re financial participation scheme • payment not directly attributable to amount/quality of work done by individual • payment for time off under Part 6 ERO

25. Exceptions to “Pay” • guarantee pay (where lay off) • loan advance/pay advance • expenses payments • payments made to individual not in capacity as worker

26. Bonuses Excluded • payment not directly attributable to amount/quality of work done by worker • given to worker for reason other than the amount or quality of work done

27. 12 Week QP • W must work in same role with same H for 12 continuous calendar weeks during one or more assignments. • Significantly limits impact of Regulations.

28. Calculating the QP • change in job role • supply by different agencies • fractions of a week count • no break of less than 6 weeks breaks the QP (but clock stops)

29. Calculating the QP • certain longer breaks do not break the QP e.g. up to 28 weeks of sickness; paternity leave • maternity leave – W deemed to be working • temporary cessation

30. Anti-Avoidance Measures Regulation 9 is the most likely explanation for the structure of assignments the intention to prevent W from qualifying for right to parity?

31. Avoidance - Penalty • Additional award of up to £5,000 per worker

32. Employed Agency Workers Regulation 10 • scope to avoid right to equal “pay” • right does not apply to W with permanent employment contract with H • conditions to be fulfilled

33. Conditions to be Fulfilled • permanent contract of employment with A • certain terms to be included • W to be offered at least 1 hour per week

34. Conditions to be fulfilled • contract to state effect re right to “pay” parity • protection against termination: A to provide suitable work or minimum level of remuneration for 4 weeks

35. Maternity Rights EG • Paid time off for antenatal appointments. • Protection where assignment ended on h & s grounds: A to offer alternative assignment or pay.

36. Liability “Pay”, hours, rest breaks and leave (Reg 5) : H or A may be held liable : A has potential defence : A can rely on information from H

37. Enforcement • After QP W can request written information. • If W considers treated in breach of Reg 5. • Admissible in evidence.

38. Liability H liable re: • Information re job vacancies with H. • Equal treatment re collective facilities & amenities.

39. Detriment/Dismissal • Protection against dismissal by reason of enforcing rights - protection against detriment by reason of enforcing rights.

40. Remedies • compensation • no award for injury to feelings • additional award where structure of assignments intended to circumvent right to parity

41. Action Points • review notification arrangements for job vacancies • review provision of collective facilities and amenities • consider issue of “comparable” worker – check job descriptions & person spec’s

42. Action Points • communication with agency is key • review bonus arrangements

43. Perspective • Reg’s do not confer employment status - unfair dismissal - redundancy payment - occupational sick pay, maternity benefits, access to pension scheme, profit sharing and some bonuses.

44. Thank you