Agency Workers Regulations 2010

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Agency Workers Regulations 2010

Foresight Coaching and Consultancy

Who will qualify?

What rights will they get?

When will they be entitled?

How will we manage this?

Where does liability fall?

Why do we need to comply?

Agenda

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An individual supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; andHas a contract with the agency to perform work personally.

BUT NOT if the contract means that the agency or the hirer is the client or customer of a profession or business carried on by the individual

Who qualifies?

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An individual will be an agency worker if a temporary work agency is involved in making arrangements for the individual to work for and under the direction and supervision of the hirer, even if the individual is supplied by an intermediary (i.e. a limited company, umbrella company, via a master vendor)

‘Temporary work agency’ includes employment business, limited or umbrella company provider and master vendors

Who qualifies?

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To the same basic working and employment conditions for the same job, had AW been recruited directly by the hirer from the outset, after a qualifying period of 12 weeks

Paid ante natal treatment and suitable alternative work if the assignment ends on maternity grounds or pay for the duration or likely duration of the assignment

What are their rights?

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Equal treatment as to collective facilities and amenities provided by the hirer from day one

To be informed of any relevant vacant posts with the hirer

What are their rights?

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The same basic working and employment conditions as are ordinarily in the contracts of employees or workers of the hirer relating to•Pay•Duration of working time•Night work•Rest periods and breaks•Annual leave i.e. if more than statutory 28 days

Basic conditions

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Sums paid in connection with employment including:

•Bonus for the amount or quality of work•Commission•Contractual holiday pay•Voucher of fixed value capable of being exchanged for goods, money or services

Pay

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Excluding:

•Occupational sick pay•Contractual maternity, paternity, adoption pay•Compensation for loss of office or redundancy•Pension or retirement payments•Loyalty or long service payments•Paid time off for TU duties•Guarantee payments•Loans or expenses incurred in employment

Pay

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Includes:

•Canteen or other similar facilities•Child care facilities•Transport services

The right to be treated no less favourably than a comparable worker/employee of the hirer UNLESS it can be justified on objective grounds e.g. cost / loyalty

Facilities & amenities

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The right to be informed by the hirer of any relevant vacant posts with the hirer to give the worker the same opportunity for permanent employment as a comparable worker/employee of the hirer

A general announcement in a suitable place in the hirer’s establishment will comply

Access to employment

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12 weeks continuous work (from 1.10.11) including any whole or part week worked with a hirer in the same role and until they cease working in the same role for the same hirer or there is a break

Assignments through different agencies will accrue

Qualifying period

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‘Break’ excludes

•Breaks of 6 weeks or less•Incapability due to sickness up to 28 weeks•For reasons related to pregnancy up to 26 weeks after birth•Leave related to maternity, paternity, adoption•Jury service•Strike or temporary cessation

Qualifying period

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12 calendar weeks in the ‘same role’ UNLESS •It is a new role (not a new assignment); and •The main duties are substantively different;•And the agency has informed the worker of the type of work they will be doing in this new role

Structuring assignments or roles with a hirer or connected hirers to avoid completion of the qualifying period will be treated as if the period was continuous

Qualifying period

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Workers who start an assignment but are unable to continue working in the assignment for reasons related to pregnancy, childbirth, maternity or due to taking leave for maternity, paternity or adoption •Are deemed to be working for the intended or likely duration of the assignment, whichever is the longer•Even if, in the case of a worker unable to work on maternity grounds, the individual is actually working for another hirer or in another role

Qualifying period

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Audit existing workforce or workforce requirements:•Rolling or intermittent usage of agency workers•Supervision or direction•Length of assignments, actual and intended•Worker continuity, multiple agencies•Comparable workers/employees•Pay and conditions•Facilities and amenities•Worker demographics: childbearing age

Managing risk

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Explore alternative supply models:

1.Agency employs workers on permanent contracts of employment specifying certain conditions and paying workers a ‘minimum amount’ of pay between assignments where no suitable work is available (the “Swedish derogation”)

The ‘minimum amount’ is no less than 50% than the highest week’s (or month’s) pay in the last assignment

Managing risk

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Explore alternative supply models:

2. Agency provides a managed service providing workers and the staff to

supervise and direct those workers i.e. outsourcing the function rather than using the services of individual workers supplied by an agency

TUPE will apply

Managing risk

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Both agency and hirer are liable for the right to basic conditions:

•To the extent that they are responsible for the breach. Agencies will have a defence if they obtained or took reasonable steps to obtain relevant information from the hirer and have acted reasonably in determining what they should be•Where justification relates to a comparable employee, there is an explanation of the comparison

Liability

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The hirer is solely liable for the rights

•To access information about vacancies and •To use collective facilities or amenities

Liability

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Agency workers who qualify have the right

•To request a written statement of the relevant basic conditions of the workers of the hirer; the factors considered; and an explanation of the basis for using a comparable worker•To receive the statement within 28 days from the agency or if no response to make a request of the hirer.

Deliberate failure may lead to an inference of breach

Why the fuss?

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Agency workers who qualify have the right to bring a tribunal claim

•For a breach of their rights•For any detriment suffered as a result of asserting their rights•For automatic unfair dismissal (employees only) arising from the assertion of their rights•For breach of any contract of employment that means the rights do not apply

Within 3 months of the infringement

Why the fuss?

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Tribunals have the power to

•Make a declaration as to the worker’s rights•Order compensation including any expenses incurred and any loss of benefit of at least 2 weeks basic pay•Order additional compensation of up to £5000•Recommend action to remedy a detriment suffered•Increase compensation for any failure to comply with such recommendation without justification

Why the fuss?

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Questions