1. Agency Workers Regulations
Alana Jones
Jones Cassidy Jones Solicitors

2. Aim: To Explain Scope of the Regulations Day one rights
Rights conditional upon qualifying period
Operation of 12 week period

3. Aim: To Explain Anti-avoidance provisions
Protection related to maternity
Scope for derogation: permanent employment
Enforcement of rights/potential liabilities

4. Aim: Suggestions
Action points which might assist organisations to prepare for changes ahead.

5. Scope of the Reg’s Regulation 3 defines “agency worker”.
Regulation 4 defines “temporary work agency”.

6. 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)

7. 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

8. Day 1 Rights Apply from start of assignment H bears responsibility
Only H will be held liable if breach

9. 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.

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

11. 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

12. Collective Facilities & Amenities
Limits
no less favourable treatment: qualifying conditions can apply
scope for justification on objective grounds

13. 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.

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

15. 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.

16. 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.

17. Equal Treatment After QP
Regulation 5 is subject to Regulation 7
Regulation 7: completion of QP

18. 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

19. Relevant Ts & Cs pay duration of working time night work rest periods
rest breaks
annual leave

20. 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.

21. Comparable Employee engaged in same/broadly similar work
similar level of qualification & skills (?)
same establishment/different establishment
can be former employee of H
hypothetical?

22. “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?

23. 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.

24. 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

25. Exceptions to “Pay” guarantee pay (where lay off)
loan advance/pay advance
expenses payments
payments made to individual not in capacity as worker

26. 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

27. 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.

28. 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)

29. 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

30. 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?

31. Avoidance - Penalty
Additional award of up to £5,000 per worker

32. 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

33. 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

34. 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

35. Maternity Rights EG Paid time off for antenatal appointments.
Protection where assignment ended on h & s grounds: A to offer alternative assignment or pay.

36. 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

37. Enforcement After QP W can request written information.
If W considers treated in breach of Reg 5.
Admissible in evidence.

38. Liability H liable re: Information re job vacancies with H.
Equal treatment re collective facilities & amenities.

39. Detriment/Dismissal
Protection against dismissal by reason of enforcing rights
- protection against detriment by reason of enforcing rights.

40. Remedies compensation no award for injury to feelings
additional award where structure of assignments intended to circumvent right to parity

41. 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

42. Action Points communication with agency is key
review bonus arrangements

43. 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.

44. Thank you