Agency Workers Regulations Alana Jones Jones Cassidy Jones Solicitors.

Agency Workers Regulations

Alana Jones

Jones Cassidy Jones Solicitors

Aim: To Explain

• Scope of the Regulations

• Day one rights

• Rights conditional upon qualifying period

• Operation of 12 week period

Aim: To Explain

• Anti-avoidance provisions

• Protection related to maternity

• Scope for derogation: permanent employment

• Enforcement of rights/potential liabilities

Aim: Suggestions

Action points which might assist organisations to prepare for changes

ahead.

Scope of the Reg’s

Regulation 3 defines “agency worker”.

Regulation 4 defines “temporary work agency”.


Covers

• worker (W) supplied to hirer (H)

• to work temporarily

• under H’s supervision & direction

• contract between W and supplying agency (A)


Within scope:– W supplied by intermediary– W having contract with umbrella company

Outside scope:– Genuinely self-employed in business on

own account– Managed service contracts

Day 1 Rights

• Apply from start of assignment

• H bears responsibility

• Only H will be held liable if breach

Collective Facilities & Amenities

Regulation 12(1)

W has during an assignment the right to be treated no less favourably than a comparable worker re the collective facilities and amenities provided by H.


Include

• canteen or other facilities

• childcare facilities

• transport services


Comparable worker

• (contemporaneous?) employee of H

• engaged in same/broadly similar work

• similar level of skills and qualifications?

• may be based at different establishments


Limits

• no less favourable treatment: qualifying conditions can apply

• scope for justification on objective grounds

Information re Vacant Posts

Regulation 13

W has right to be informed by H of any relevant vacant posts with H to give W the same opportunity as a comparable worker to find employment with H.


Comparable worker

• employee of H


• similar level of skills & qualifications?

• at same establishment


Limits

• May inform by general announcement in a suitable place.

• Parity re notification of relevant vacancies.

• No adjustment to selection criteria required.

Equal Treatment After QP

Regulation 5:

W entitled to same basic working & employment conditions as W would be entitled to for doing the same job had W been directly recruited by H.

Equal Treatment After QP

• Regulation 5 is subject to Regulation 7

• Regulation 7: completion of QP

Basic Working & Employment Conditions

Are

• Relevant Ts & Cs ordinarily included in contracts of H’s own workforce

• Can be collectively agreed Ts & Cs

• Includes variations after completion QP

Relevant Ts & Cs

• pay

• duration of working time

• night work

• rest periods

• rest breaks

• annual leave

Comparable Employee

Right fulfilled where W working under same relevant Ts & Cs as a comparable employee whose contract reflects Ts & Cs ordinarily included in contracts of comparable employees of H.

Comparable Employee


• similar level of qualification & skills (?)

• same establishment/different establishment

• can be former employee of H

• hypothetical?

“Pay”

• Broad definition subject to exceptions

• Include vouchers & stamps of fixed monetary value or capable of exchange for money, goods or services e.g.– luncheon vouchers– discount cards?

Exceptions to “Pay”

• occupational sick pay

• pension, allowance or gratuity re retirement or compensation for loss of office

• pay re maternity, paternity or adoption leave.


• redundancy pay

• payment re financial participation scheme

• payment not directly attributable to amount/quality of work done by individual

• payment for time off under Part 6 ERO


• guarantee pay (where lay off)

• loan advance/pay advance

• expenses payments

• payments made to individual not in capacity as worker

Bonuses

Excluded

• payment not directly attributable to amount/quality of work done by worker

• given to worker for reason other than the amount or quality of work done

12 Week QP

• W must work in same role with same H for 12 continuous calendar weeks during one or more assignments.

• Significantly limits impact of Regulations.

Calculating the QP

• change in job role

• supply by different agencies

• fractions of a week count

• no break of less than 6 weeks breaks the QP (but clock stops)

Calculating the QP

• certain longer breaks do not break the QP

e.g. up to 28 weeks of sickness; paternity leave

• maternity leave – W deemed to be working

• temporary cessation

Anti-Avoidance Measures

Regulation 9

is the most likely explanation for the structure of assignments the intention to prevent W from qualifying for right to parity?

Avoidance - Penalty

• Additional award of up to £5,000 per worker

Employed Agency Workers

Regulation 10

• scope to avoid right to equal “pay”

• right does not apply to W with permanent employment contract with H

• conditions to be fulfilled

Conditions to be Fulfilled

• permanent contract of employment with A

• certain terms to be included

• W to be offered at least 1 hour per week

Conditions to be fulfilled

• contract to state effect re right to “pay” parity

• protection against termination:

A to provide suitable work or minimum level of remuneration for 4 weeks

Maternity Rights

EG

• Paid time off for antenatal appointments.

• Protection where assignment ended on h & s grounds: A to offer alternative assignment or pay.

Liability

“Pay”, hours, rest breaks and leave (Reg 5)

: H or A may be held liable

: A has potential defence

: A can rely on information from H

Enforcement

• After QP W can request written information.

• If W considers treated in breach of Reg 5.

• Admissible in evidence.

Liability

H liable re:

• Information re job vacancies with H.

• Equal treatment re collective facilities & amenities.

Detriment/Dismissal

• Protection against dismissal by reason of enforcing rights

- protection against detriment by reason of enforcing rights.

Remedies

• compensation

• no award for injury to feelings

• additional award where structure of assignments intended to circumvent right to parity

Action Points

• review notification arrangements for job vacancies

• review provision of collective facilities and amenities

• consider issue of “comparable” worker – check job descriptions & person spec’s

Action Points

• communication with agency is key

• review bonus arrangements

Perspective

• Reg’s do not confer employment status

- unfair dismissal

- redundancy payment

- occupational sick pay, maternity benefits, access to pension scheme, profit sharing and some bonuses.

Thank you

Agency Workers Regulations Alana Jones Jones Cassidy Jones Solicitors.

Documents

Agency Workers Regulations Alana Jones Jones Cassidy Jones Solicitors.