The Agency Workers Regulations 2010 Jon Taylor 17 September 2010

Due to come into force on 1 October 2011 Certain aspects of the Regulations are supported by guidance – due early 2011 Apply to Great Britain What are the views of the coalition government? The Agency Workers Regulations 2010

Provide a framework for basic waiting and employment for agency workers that are no less favourable then if they had been recruited direct Equal access to facilities and permanent employment Penalties of non-compliance by agencies and end users What to the Regulations do?

Agency workers who find temporary work through a temporary work agency Doesn’t apply to the genuinely self-employed or those who work through their own limited-liability company Who is covered?

A person engaged in the economic activity, public or private, whether or not operating for profit, and whether or not carrying on such activity in conjunction with others, of: (a)supplying individuals to work temporarily for and under the supervision and direction of hirers; or (b) paying for, or receiving or forwarding payment for, the services of individuals who are supplied to work temporarily for and under the supervision and direction of hirers Temporary work agency (regulation 4)

Supplied by a temporary work agency To work temporarily for and under the supervision and direction of a hirer Has a contract with the temporary work agency which is a contract of employment with the agency or any other contract to perform work and services personally for the agency (regulation 3(1)) What about those who have a contract with the agency to perform services for the hirer? Being employed or otherwise engaged by an agency includes those circumstances in which a worker is supplied through one or more intermediary (regulation 3(3) to (5)) – Umbrella Companies Agency worker (regulations 2 and 3)

“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" Potential derogation for public vocational training and retraining programmes Hirer (regulation 2)

An agency worker (A) will be 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 (a) other than by using the services of a temporary work agency; and (b) at the time the qualifying period commenced The right to equal treatment (regulation 5)

In order to show unequal treatment A will need to:- identify a directly recruited comparator at the hirer’s business identity the relevant terms and conditions included in the comparators contract The comparator can be:- real or hypothetical a ‘worker’ or ‘employee’ But, there is defence for the hirer if he can show an actual comparator working under the same terms and conditions (and where those terms and conditions are normally included in comparators contracts) The right to equal treatment (regulation 5)

A and the comparator are comparable if, at the time when the alleged breach of the right takes place, both are: Working for and under the supervision and direction of the hirer, and Engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills, and The comparator works or is based at the same establishment as A If there is no local comparator, the hirer can use a comparator who works or is based at a different establishment, but the hirer cannot use an ex-employee Deemed Compliance

Pay Duration of working time Length of night work Rest periods Rest breaks Annual leave Must be “ordinarily included” Basic working and employment conditions

Pay (regulation 6(2)) “Any sums payable to a worker of the hirer in connection with the worker's employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under contract or otherwise but excluding any payments or rewards [listed in regulation 6(3)]"

Pay therefore includes Basic pay Holiday pay (and time off in relation to public and bank holidays) Overtime pay Shift allowances Unsocial hours premiums or bonus Additional payments for particularly difficult and dangerous duties Bonuses linked to individual performance (for example, piece-work bonus which is linked to output and those based on performance appraisal arrangements) Vouchers or stamps with a monetary value, such as luncheon and transport vouchers

Pay does not include Profit share or share participation which reflect long-term performance or reward loyalty) Financial participation schemes (defined as distribution of shares, share options and profit sharing) Occupational sick pay Occupational Pensions (but note the effect of Pensions Act 2008 from 2012) Contractual notice pay Contractual redundancy pay Benefits in kind such as company car allowances or health insurance

The 12-week qualifying period 12 calendar weeks Requires an agency worker to undertake the same role On one or more assignments With the same hirer For 12 continuous calendar weeks (regulation 7(2)) Any week during the whole or part of which an agency worker is engaged on an assignment is counted as a calendar week (regulation 7(4))

The "same role" Continuity will be broken if where "the work or duties that make up the whole or the main part of that new role are substantively different from the work or duties that made up the whole or main part of the previous role" (regulation 7(3)(b)) The worker would have to commence a new, separate assignment with the hirer. They cannot simply be switched between roles in the context of the same contract with the agency The meaning of “substantive” will be set out in guidance Agencies will be required to provide a written description of the new work the agency worker will be required to undertake

Anti-avoidance provisions (regulation 9) This gives a worker the right to be treated as if they were entitled to equal treatment if a structure of assignments develops, within either the hirer or between that hirer and connected businesses Factors to be considered The length of the assignments The number of assignments with the hirer and, where applicable, hirers connected to that hirer The number of times the agency worker has worked in a new role with the hirer and, where applicable, hirers connected to that hirer and whether or not the new role was the "same role" The period of any break between assignments with the hirer and, where applicable, hirers connected to that hirer Additional award of up to £5,000 to prevent abuse.

Breaks during (or between) assignments (regulation 7) A break of 6 calendar weeks, either during or between assignments, would be needed before it is necessary to re-start the time that counts towards the qualifying period (regulation 7(4) and (6)(a)) Some absences will not count towards the qualifying period Sickness absence of up to 28 weeks Statutory or contractual time off or leave (other than maternity, paternity or adoption leave for which specific provision has been made), for example, annual leave Jury service of up to 28 weeks Custom and practice of the hirer A strike, lock-out or other industrial action at the hirer's establishment

Breaks during (or between) assignments Some absences from work will count towards the qualifying period Weeks during which a worker is absent for certain reasons related to pregnancy, childbirth or maternity for a protected period of up to 26 weeks after a woman has had her child Weeks when the worker is absent on statutory or contractual maternity, paternity or adoption leave (regulation 7(5), (6) and (8)(d)(i),(ii) or (iii))

Pregnant women and nursing mothers Right to reasonable time off during working hours to attend ante-natal appointments (a new section 55A of ERA 1996) Right to be paid by the agency during such absence at the appropriate hourly rate (a new section 56A of ERA 1996) subject to Informing the hirer and the agency of the pregnancy, in writing if requested and Where requested by the hirer and/or agency providing written evidence of ante-natal appointments Unreasonable refusal of time off or non-payment during her absence risks an ET claim (a new section 57AA of ERA 1996)

Pregnant women and nursing mothers Duty to make adjustments Cessation of supply and appropriate alternative work What if there is no appropriate alternative work?

Employment vacancies (regulation 13) Right to be told of relevant vacancies Right subsists from start of the assignment Must be given the same opportunity as a comparable worker to find work with the hirer

Employment vacancies – what do you need to do? Notification by “a general announcement in a suitable place in the hirer's establishment" will be sufficient (regulation 13(4)) Does this obligation constrain the imposition of employer-specific qualifications or experience? What about internal transfers and hiring freezes?

Access to onsite facilities (regulation 12) Right to equal treatment as regards access to "collective facilities and amenities" which include, in particular: –Canteen or other similar facilities –Child care facilities –Provision of transport services Liability for failure to provide access will be on the hirer Failure can be justified on objective grounds

Liability for equal treatment (regulation 14) The Agency is responsible for any breaches of rights in relation to agency workers' basic working and employment conditions to the extent that it is responsible for the infringement (regulation 14(1)) “Reasonable Steps” defence The hirer is responsible for any breach to the extent that it is responsible for the infringement, having regard to the steps it has taken to enable the agency to provide information to the agency worker No joint and several liability

Information on equal treatment for workers (regulation 16) Right to a written statement within 28 days of a written request to their temporary work agency setting out Relevant information relating to the hirer's basic working and employment conditions Factors the temporary work agency considered when determining the basic working and employment conditions which apply to the agency worker following the qualifying period Information which explains the basis on which it is considered that a person is a comparable employee; and the basic working and employment conditions in force at the hirer that apply to that employee

Information on equal treatment for workers (regulation 16) If the worker has not been provided with statement within 30 days of making the request, he can seek the information from the hirer The hirer must provide the information in writing within 28 days of a written request (regulation 16(4)) Failure to respond entitles tribunal to draw adverse inferences Similar rights to information for infringement of right of access to employment and collective facilities or training.

Enforcement Tribunal claims for breach of the rights to: Equal treatment after the 12-week qualifying period Access to employment and collective facilities Not be subjected to detriment (regulation 18(2)) Provision of information under regulation 20 (regulation 15(2)(b))

Enforcement - time limits 3 months from the date of the infringement or detriment "just and equitable" to do so (regulation 18(4)) Eligible for pre- and post-claim ACAS conciliation

Enforcement – Remedies Declaration Compensation ("just and equitable") Recommendations for action to be taken

The Agency Workers Regulations 2010 Jon Taylor 17 September 2010