New Rights for Agency Workers now finalised

May 5, 2010 7:34 am Published by

New Rights for Agency Workers now finalised

The Agency Workers Regulations 2010 will come into force on 1 October 2011 and they provide agency workers with the right to equal treatment in respect of certain basic working and employment conditions after 12 weeks on the same assignment, which includes pay.

WHO DOES IT APPLY TO?

The Regulations will apply to workers engaged by an employment agency to work “temporarily for and under the supervision and direction of a hirer”. This means that it will apply to temps but also have wider applications because it will apply to workers provided to a company through an intermediary company and also people who use a personal service companies (PSCs), unless they are genuinely in business on their own account.

The Regulations won’t apply to workers engaged directly by the hirer, genuinely self- employed individuals and those on outsourcing contracts where they are not manager or supervised by the hirer.

WHAT DOES IT COVER?

There are 3 main areas where agency workers will be entitled to equal treatment which are :-

1. Pay (but not some forms including sick pay, pensions, expenses and some bonuses)

2. Holiday (statutory and contractual)

3. Rest periods, rest breaks, and length of working time.

WHEN DOES IT KICK IN?

Generally it applies after 12 weeks, however if the worker moves to a substantively different role, the 12-weeks starts again, and the right to equal treatment will not apply until he has worked for a further 12 weeks. Breaks between assignments will also re-set the 12 week calculation, provided the break is for at least six weeks (not counting annual leave). Hirers cannot however, specifically structure assignments to ensure such breaks prevent workers getting rights, as to do so with fall foul of the anti-avoidance provision within the Regulations, designed to prevent agencies and hirers alike getting round the Regulations in this way.

If the agency worker has carried out more than one assignment for a hirer and the most likely explanation for the structure of assignments is an intention to avoid the equal treatment principle, the worker is deemed to be entitled to equal treatment. An Employment Tribunal can award a penalty of up to £5,000 together with the difference in pay.

Some more minor rights start immediately an agency worker starts and they will have same rights of access as comparable employees (or workers) of the hirer to certain facilities which include canteen facilities; child care facilities ; transport services (unless the reason for denying access is justifiable). They will also have the right to be informed of vacancies at the hirer.

EQUAL TO WHO?

The concept of equal treatment means that a comparison to what the worker’s basic working conditions would have been if he had been hired directly by the hirer into that job (whether as an employee or a worker) must be made. The question of what basic employment rights the worker would have received, will take into account terms that apply generally to comparable staff or the “going rate” the hirer pays for a particular sort of job.

Terms genuinely negotiated on a case-by-case basis, will not be in breach of the equal treatment principle of the Regulations. If there is an actual worker or employee who receives the same basic employment rights as the agency worker for doing broadly similar work, this will provide a complete defence.

Businesses that use agency workers will need to take advice on this area of law well in advance of October 2011 to ensure that they will not breach these new Regulations and to minimise risk of costly and time consuming claims against them in the Employment Tribunal.

Victoria Young is an employment solicitor in the Employment Services Team at Blocks solicitors in Ipswich. She can be contacted on 01473 343922 or emailed at vy@blockslegal.co.uk

The above is general comment only and individual advice should be taken

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