EMPLOYMENT LAW TRAINING AND EMPLOYMENT LAW CONSULTANCY

Section Two

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The Law in More Detail

New rights for agency workers

Seven Essential points to note.

Overview.

The Government has been under pressure for some years, both at home and in Europe, to improve the rights of temporary agency workers. Progress was finally made when the Directive on temporary agency work was published by the European Union. Following two rounds of consultation in May and October 2009 respectively, the Government devised the Agency Worker Regulations 2010 SI 2010/93 - for transposing the Directive into UK law.

Member States now have until 5th December 2011 to implement its provisions, which give agency workers certain rights equal to those of comparable permanent staff.
The Agency Workers Regulations is the UK response, and this article takes a brief, practical look at the implications for UK employers from 1 October this year.

Introduction

On 6 May 2011 the Department for Business, Innovation and Skills published its final version of the Guidance accompanying the Regulations (‘the Guidance’) to help agencies and hirers comply with their obligations under the legislation. This is available to view at www.bis.gov.uk

Point One - Who is covered?

The new law will apply to ‘employment businesses’ (sometimes called "Temporary agencies) that introduce individuals to hirers for temporarywork only. It will not apply to what are termed "employment agencies", which look to place people into permanentemployment.
"In house" lists of bank or casual staff will not be covered by the Regulations.

Point Two - the Right to "Equal treatment"

The rules provide for "equal treatment" between the agency worker and the staff employed by the "hirer". This will not give agency workers employment rights such as unfair dismissal.
Some rights will be from Day one of any assignment (see below). Most will come after 12 weeks with the hirer.
Note: where the Agency employs the agency worker, they may be exempt from equal treatment with the hirer.

Point Three - What does "Equal Treatment" cover?

It covers "basic working and employment conditions": Pay; Duration of working time; Night work; Rest periods; Annual Leave.

Pay - The Guidance (page 27) lists the following items as part of ‘pay’:

• basic pay
• overtime payments
• allowances for working shifts or unsocial hours
• risk payments for hazardous duties
• payment for annual leave (any entitlement above the statutory minimum of 5.6 weeks can be added to the hourly or daily rate)
• bonuses or commission payments directly attributable to the amount or quality of the work done by the individual
• additional discretionary, non-contractual payments, as long as these have not become custom and practice, e.g. a one-off payment to celebrate a particular event
• vouchers or stamps that have monetary value and are not provided through ‘salary sacrifice schemes’ - e.g. luncheon or childcare vouchers.

The following are excluded from the definition of ‘pay’:

• occupational sick pay (the Regulations do not affect an agency worker’s entitlement to statutory sick pay)
• occupational pensions (although agency workers will be covered by new automatic pension enrolment phased in from October 2012)
• occupational maternity, paternity and adoption pay (the Regulations do not affect an  agency workers statutory entitlements)
• redundancy pay (statutory and contractual)
• payments or rewards linked to financial participation schemes (defined as any scheme offering a distribution of shares or options or a share of profits)
• bonuses that are not directly attributable to the amount or quality of the work done by a worker, e.g. to encourage loyalty or reward long-term service
• payments for statutory time off, such as for carrying out trade union duties
• guarantee pay (when laid off due to a shortage of work)
• advances and employee loans
• expenses (e.g. accommodation or travel expenses)
• and any payments that fall outside the employment relationship.

Crucially, most benefits in kind, such as private health insurance or a company car allowance, expressly fall outside the scope of ‘pay’ under the Regulations (vouchers with a monetary value are an exception). The same is true for statutory and contractual notice pay, according to the Guidance.

Point Four - What is the Qualifying Period?

Although the Directive grants the right to equal treatment from the first day of an assignment, the Regulations require 12 weeks qualification. However note that some rights will come on day one, see below.

Essentially a worker must work in the same role with the same hirer for 12 continuous calendar weeks during one or more assignments’ before being entitled to equality in respect of basic working and employment conditions.  A week counts even if the worker only reports for one day. A worker will qualify even if supplied to the hirer through different agencies for part of the 12 weeks; in essentially the same role.

However there are many anti avoidance measures that are beyond the scope of this brief overview. For example it will be open to an employment tribunal to decide that a hirer and/or an agency had malign motives for moving the worker to a different job or otherwise breaking the 12-week period.

The 12 weeks qualification will be "paused" if the following occur, i.e. the 12 weeks will continue to accrue after the workers return from:

• a break for any reason for not more than six calendar weeks (but remember the anti avoidance measures!)
• the worker’s sickness or injury (for up to 28 weeks and, if requested by the agency, supported by written medical evidence)
• any statutory or contractual entitlement to time off, e.g. annual leave
• jury service for up to 28 weeks
• a temporary cessation in the hirer’s requirements for any worker to be present at the establishment and work in a particular role, for a predetermined period of time according to the established custom and practices of the hirer
• industrial action at the hirer’s establishment

Point Five - What are the "Day One" rights?

Essentially these are the rights to access the hirer’s collective facilities and amenities and the right to be informed of any vacant posts with the hirer. The Guidance gives these examples: canteen or other similar facilities, childcare facilities and transport services, provision of car parking, toilet or shower facilities, a prayer room, and a mother and baby room.

Point Six - who is liable/responsible for breaches of the rules?

Responsibility for ensuring Equal Treatment rests with the Agency, so most claims will probably start with an Agency Worker seeking information from the Agency on the terms of employment in force at the hirer. The Agency has a defence where it demonstrates that the Hirer has not complied with a request for information from the Agency. Liability for access to collective facilities (the day one rights) will rest with the Hirer.

Point Seven - what is the compensation?

Claims have to be made to an Employment Tribunal. The "normal" three month time period applies for a claim to be in time. Financial compensation is unlimited, but will not include any compensation for injury to feelings, which normally apply to discrimination claims.

This article is intended as a brief overview only. For a full review visit www.bis.gov.uk