Agency workers Regulations: frequently asked questions
Kerry Viner and Deepa Parekh of Osborne Clarke conclude a series of articles on the agency workers Regulations with some frequently asked questions that consider, among other things, the obligations that employers that use agency workers will have under the Regulations, and the rights to which agency workers will be entitled.
When do the agency workers Regulations come into force?
The Agency Workers Regulations 2010 (SI 2010/93) will come into force on 1 October 2011. They will give agency workers certain rights from their first day on an assignment and further rights after a 12-week qualifying period. The Regulations implement the Temporary Agency Work Directive (2008/104/EC).
Although the Regulations were passed in 2010, the Government deferred their implementation to October 2011, primarily to give hirers and staffing companies time in which to make any necessary changes to their staffing arrangements to comply with the Regulations.
The Regulations will almost certainly come into force in their current form. It is highly unlikely that the Government will amend the legislation between now and October 2011. Any amendments would need to be approved by the CBI and the TUC before they could be passed by Parliament. This would leave little time for revised Regulations to be brought into effect in time for the deadline of 5 December 2011, by which time EU member states must implement the Directive.
Why do organisations that are not employment agencies need to consider the agency workers Regulations?
The agency workers Regulations place obligations on employers that hire or otherwise use workers who are agency workers under the Regulations. Their impact is not limited to employment agencies and companies that are involved in the supply of agency workers.
A hiring end user that fails to comply with its obligations under the Regulations may be liable for an award of compensation made against it by an employment tribunal.
A hirer may also be held responsible for a breach of a staffing company's obligations under the Regulations if an employment tribunal finds that the hirer was partly or fully to blame for the breach (for example where the hirer ignores the staffing company's request to discuss and formulate a strategy to ensure compliance with the Regulations). Hirers will also be liable under the Regulations if they fail to give certain information about their own workers' and employees' employment conditions when requested by a staffing company or, in some circumstances, an agency worker.
Who is an "agency worker" for the purposes of the Regulations?
The definition of agency workers under the Regulations is wide. Unless a worker is placed and paid as a permanent employee or worker by the hirer, the Regulations are likely to apply. The definition extends beyond PAYE temps to include other contractors and workers engaged on an employed basis at another organisation.
Agency workers include individuals who work through a "temporary work agency" (as defined in reg.4 of the Regulations) temporarily for a hirer and under that hirer's supervision and direction. This will almost certainly cover not only PAYE temps, but also umbrella company workers. It will also cover freelancers and other individuals supplied to a hiring organisation if they work under the supervision and direction of that hiring organisation.
Hirers and staffing companies should also be aware that personal service company workers may come within the scope of the Regulations (unless they are genuinely self employed), as may those supplied through managed service arrangements where supervision and direction are unclear.
Where a worker is not supervised or directed by the hirer or a line manager who is employed by or works for the hirer, the Regulations are unlikely to apply.
What are the main provisions in the agency workers Regulations?
The agency workers Regulations will confer on agency workers a number of new rights. Some of these rights will apply from the first day a worker is engaged at a hirer. Other rights will apply only after the worker has been with the same hirer in the same or a substantively similar role for 12 weeks.
Rights that apply from day one include the right:
- to access shared facilities that the hirer's comparable employees and workers can access (for example canteens, crèches and gyms), unless the hirer can objectively justify refusing access;
- to be given the same opportunity to apply for relevant internal and external vacancies as the hirer's comparable employees and workers (unless the vacancy is as a result of restructuring); and
- not to suffer a detriment for asserting rights under the Regulations.
Hirers may be liable for employment tribunal claims by agency workers to whom they deny the above rights.
Following the completion of a 12-week qualifying period, agency workers will be entitled to the same basic working and employment conditions as a comparator working for the hirer. In the event that this entitlement is breached, the hirer will be liable to pay an award to the extent that the employment tribunal finds that it is responsible for the breach.
After the qualifying period, pregnant agency workers will also be entitled to enhanced rights, including paid time off for antenatal care and, potentially, paid time off during an assignment if it is unsuitable for pregnant workers.
Other provisions that hirers need to consider include the requirement to provide:
- comparator information to workers and staffing companies; and
- details of the number of agency workers for the purposes of information provision and collective consultation requirements (for example in connection with collective redundancies and under the TUPE Regulations 2006).
Which basic working and employment conditions must be equal after the 12-week qualifying period?
Agency workers who have completed a 12-week qualifying period are entitled to equal treatment with a comparable employee of the hirer in relation to:
- working time duration;
- night work;
- rest periods;
- rest breaks; and
- contractual annual leave.
- fees and commission;
- overtime and shift allowances;
- bonuses based on performance (rather than longer-term and/or company-wide bonus or share schemes); and
- vouchers (for example for childcare or eye tests).
In what way will agency workers' maternity rights be enhanced by the Regulations?
The agency workers Regulations will give pregnant workers rights in addition to those in place under existing law.
Once a pregnant agency worker has completed the 12-week qualifying period, she will have the right to be given time off for antenatal care by the temporary work agency and the hirer and to be paid for the time off by the agency. If the agency or hirer unreasonably refuse to allow the agency worker to take time off, an employment tribunal may order either or both parties to pay her the amount to which she would have been entitled, had she not been refused the time off, depending on the extent of their responsibility for the breach.
The pregnant worker will also, potentially, have the right to paid time off by the agency for the remainder of an assignment if it is unsuitable for a pregnant worker.
The right to paid time off for the remainder of an assignment will arise only if certain conditions are met, namely that:
- a risk assessment indicates that the agency worker's current role is unsuitable for pregnant workers;
- no reasonable adjustments can be made to make the assignment suitable for the pregnant worker; and
- the temporary work agency cannot find a suitable alternative assignment either at that hirer or another hirer.
How will agency workers meet the qualifying period to become entitled to comparable terms and conditions as a permanent employee at the hirer?
An agency worker will meet the qualifying period for equal treatment with a comparable permanent employee once he or she has carried out the same, or a substantively similar, role at the same hirer for 12 weeks. If the agency worker changes employment agencies during the qualification period, this will not affect his or her rights. Provided that the hirer remains the same, the qualifying period will continue to accrue.
The 12-week period does not need to be continuous. Certain breaks will pause the time during which the worker accrues service, and he or she will resume accumulating service on return from the break.
Absences during which the qualification period will pause are those due to:
- breaks between assignments of not more than six weeks;
- jury service of up to 28 weeks;
- sickness absence of up to 28 weeks;
- annual leave;
- organisational "shut down" (eg pre-determined factory closure); and
- industrial action.
If an agency worker is absent for a reason related to pregnancy or maternity during a protected period or due to maternity, paternity or adoption leave (which is provided for through his or her relationship with the agency) the 12-week period will continue to accrue throughout the absence period.
Absences that fall outside the above will normally have the effect of breaking service.
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