LEGAL UPDATE Agency Workers Regulations 2010

The Agency Workers Regulations 2010 come into force on 1st October 2011.

Under the Regulations:

  • From day one, agency workers will be entitled to access to the collective facilities of the hirer (such as a staff canteen, on-site gym, creche, etc) and also to be provided with information on permanent vacancies.  The liability in respect of these “day one” rights, therefore, will be with the hirer.

 

  • After 12 continuous (although not necessarily unbroken) weeks working for the same hirer, agency workers will be entitled to the same basic working conditions as those employed directly by the hirer.  Working conditions include pay, working time and annual leave.  Pay will include bonuses or commissions where these are directly attributable to the amount or quality of the work done by the worker.  Pay does not, however, include pensions (although 2012 reforms will apply) contractual payments relating to sick leave, redundancy, or maternity, paternity or adoption leave. 

 

  • In calculating the 12-week qualifying period, the Regulations are very generous to the temporary workers.  The following breaks between assignments (doing the same or not substantively different role) will stop the clock running but will not set it back to zero: 
    • a break of 6 weeks or less for any reason
    •  any statutory or contractual holiday or other time off
    • up to 28 weeks’ sickness absence
    • up to 28 week’s jury service
    • pregnancy, childbirth, maternity, paternity or adoption leave (26 weeks after birth)
    • custom and practice breaks in production/activity
    • industrial action
  • Agency workers that have permanent contracts of employment with temporary work agencies, under which they continue to be paid the “minimum amount” when they are available to work but are not placed on an assignment with a hirer, are excluded from the right to equal pay. Under the Regulations the “minimum amount” that agency workers must receive during such period is pay equal to 50% of the highest level of pay that they have received within the previous 12 weeks of an assignment.

 

  • Agency workers will be able to claim compensation if they are denied the terms and conditions granted under the Regulations. This compensation will be for an amount that the tribunal considers just and equitable taking into account the loss suffered as a result. Both temp agencies and hirers will be liable to pay this compensation to the extent they are responsible for the breach of the Regulations. The temp agency can escape liability by showing that it has requested the relevant information from the hirer, used it to determine what terms and conditions the agency worker is entitled to and provided those terms and conditions. If this is shown, the liability will fall solely on the hirer if the information provided by it was inaccurate. 

 

  • It won’t be easy to avoid the Regulations as specific anti-avoidance measures have been introduced. These address concerns that temp agencies and hirers would simply structure assignments by, for example, rotating agency workers to ensure that they never complete 12 consecutive weeks in the same role for the same hirer. Where a temp agency or hirer is found to be in breach of this provision, the tribunal is also entitled to make an additional award of compensation of up to £5,000. 

 

  • In order to assess whether or not they are suffering a detriment on the grounds of their status, agency workers will also have the right to request information relating to terms and conditions first from the temp agency and then from the hirer. 

It is apparent, therefore, that the clear aim of the Regulations is to afford greater protection to temporary workers in terms of their pay, working time, annual leave entitlement, access to the facilities of the hiring company and access to permanent job opportunities.  The big question is whether, as a result of the greater cost and administrative burden which will inevitably be placed on both the employment temp agencies and the end hirers, there will be fewer opportunities for people to work as temps.  Many people make the decision to be temporary workers as they need the flexibility that such working arrangements afford and wouldn’t be able to commit to a permanent post.  For example, women with children at school may decide to temp so that they can take time off during the school holidays.  If it becomes more difficult and more expensive to use an agency, many businesses may simply decide to engage people directly on fixed-term contracts instead or to introduce their own pools of “bank staff”.  As a result, the unwitting effect of the Regulations may be to increase unemployment, particularly amongst women.  Time will tell whether this prediction will be borne out.

 

Advertisements

About Belinda Lester
I am the managing director and founder of Lionshead Law a specialist employment law and HR consultancy company.

One Response to LEGAL UPDATE Agency Workers Regulations 2010

  1. james portugal says:

    I think it is inevitable that some temp workers will be dismissed as a result of this. What the job market needs is more flexibility not more beauracracy.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: