The Agency Workers Regulations 2010 (the Regulations) came into force on 1 October 2011, implementing the EU Agency Workers Directive. These Regulations entitle temporary agency workers to be treated the same as permanent employees in relation to basic working and employment conditions as if they had been employed directly by a company (the hirer) to do the same job.
The Regulations will have a wide impact on agency workers’ rights and greatly enhance current agency worker entitlements in relation to remuneration, paid holiday, working hours, overtime, maternity and anti-discrimination provisions and from 2012, and under the new provisions in the Pension Act 2008, the benefit of workplace pension saving.
Precisely to whom do the Regulations apply?
An agency worker is defined in the Regulations as someone who is supplied by a “temporary work agency” (which is in turn defined as one would expect) to work temporarily for and under the supervision and direction of a hirer. There should also be either a contract of employment with the agency or a contract to perform work and service personally. Those providing services through an umbrella or personal services company will be covered by the Regulations however those who are genuinely self-employed will not be.
Immediate entitlements
Upon starting an assignment, an agency worker will be immediately entitled to receive equal access to those collective facilities and amenities that are made available to permanent employees. Such facilities are stated in the Regulations to include child care facilities, canteen (or similar) and the provision of transport services. Government guidance also regards a staff common room, a prayer room, food and drinks machines, car parking and showers as relevant facilities or amenities. Agency workers will also be entitled to have access to information about the hirer’s job vacancies.
Conditional entitlements – after “qualifying period”
In addition to the immediate entitlements set out above, agency workers will be entitled to further rights to equal treatment once they have completed 12 continuous weeks (the qualifying period) of an assignment in the same role (whether in one or more spell).
Upon completion of the qualifying period, agency workers will be entitled to the same basic working and employment conditions as if they had been recruited directly by the hirer on day one of the assignment, either as employee or worker. The basic working and employment conditions are terms and conditions relating to: pay, duration of working time, length of night work, rest periods, rest breaks and annual leave. There is also specific provision for paid time off for ante natal appointments and for alternative work (or pay) to be provided where a pregnant agency worker is unable to continue with an assignment for health and safety reasons.
Pay is defined in the Regulations as any sum payable to a worker of the hirer in connection with the workers’ employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment. This means that the following is included: basic pay, overtime pay, shift or unsocial hours allowances and bonuses or commission payments which are directly attributable to the amount or quality of the work done by the worker.
However, pay does not include: occupational sick pay, occupation pensions, occupational maternity, paternity or adoption pay, notice pay, bonuses not linked to individual work (eg flat rate across the board bonus), benefits in kind, payments linked to a qualifying period and advances in pay or loans.
As paid holiday entitlements may vary then it may be possible to entitlement in excess of the statutory minimum as a one off payment at the end of an assignment.
In relation to the qualifying period itself, any week during the whole or part of which an agency worker is engaged on an assignment is counted as a calendar week. The time that counts towards the qualifying period will be broken if the agency worker starts a new assignment with the same hirer 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”.
Whether or not changes are substantive is likely to be the degree of difference between the duties or responsibilities of the two roles with factors such as skills and attributes required likely to be considered factors. Unless agencies provide a written description of the new work to the worker, there will be a presumption that the worker is working in the same role.
Where there is a break of more than six calendar weeks either during or before assignments, continuity will have been broken. However, where the break is for less than six weeks, continuity will have been merely suspended. Further examples of when continuity will have been suspended, rather than broken, include:
- sickness absence for up to 28 weeks;
- statutory or contractual time off or leave (ie annual not maternity, paternity or adoption leave);
- jury service of up to 28 weeks;
- a temporary cessation in the hirer’s requirement for any worker to present at the establishment and work in a particular role;
- a strike, lock-out or other industrial action at the hirer’s establishment.
Instances falling outside of these examples would result in the worker having to re-start counting their weeks towards their qualifying period.
Anti-avoidance provisions
The Regulations introduce specific anti-avoidance measures to prevent hirers and temporary worker agencies from circumventing the provisions of the Regulations. “Structuring of assignments” is prohibited by the Regulations and an Employment Tribunal will be able to award an additional financial penalty of up to £5,000 against a hirer or agency where they believe that they intended to prevent the worker from acquiring equal rights under the Regulations. Examples of deliberate structuring include where a hirer has put a worker on a series of 11 week contracts or has varied the worker’s role every few weeks.
The devil, as always, is in the detail and employers are advised to seek specific advice about the Regulations, especially if agency workers are to be taken on for a period of 12 weeks or more.
