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”.

Scope of the Reg’s Covers worker (W) supplied to hirer (H) to work temporarily under H’s supervision & direction contract between W and supplying agency (A)

Scope of the Reg’s 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.

Collective Facilities & Amenities Include canteen or other facilities childcare facilities transport services

Collective Facilities & Amenities Comparable worker (contemporaneous?) employee of H engaged in same/broadly similar work similar level of skills and qualifications? may be based at different establishments

Collective Facilities & Amenities 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.

Information re Vacant Posts Comparable worker employee of H engaged in same/broadly similar work similar level of skills & qualifications? at same establishment

Information re Vacant Posts 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 engaged in same/broadly similar work 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.

Exceptions to “Pay” 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

Exceptions to “Pay” 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