The Agency Workers Regulations 2010 come into force on 1 October 2011. The regulations will give agency workers further rights so that their terms and conditions are comparable to direct employees of the hirer.

Some rights come into effect on the first day of the worker’s assignment, and others will not come into force until the worker has been engaged for 12 consecutive weeks (after 1 October 2011 – the regulations are not retrospective).   In May, the Department for Business, Innovation and Skills produced helpful guidance in relation to the regulations, which is a useful source for those to whom the regulations apply.   It is important that those supplying and hiring agency workers are aware of the upcoming changes and are prepared for their implementation.

To whom do the regulations apply?

The regulations apply to individuals who work as temporary agency workers, individuals or companies involved in the supply of temporary agency workers to hirers, and hirers of temporary agency workers.

Those who are outwith the scope of the regulations are those agency workers who are in business on their own account and those in the situation where the relationship with the hirer is that of a client or customer. This does not automatically exclude those who put their earnings through a limited company and, where there is still a tripartite relationship between the agency worker, agency and hirer, it is likely to be caught by the regulations.

Day 1 rights for all agency workers

• access to facilities, including but not limited to:
  • the canteen
  • workplace crèche
  • car parking
  • toilets and shower facilities.
• access to information on job vacancies within the hirer which would be available to a comparable employee or worker.

Rights of agency workers after the 12 week Qualifying Period

After an agency worker has completed 12 weeks in the same job and with the same hirer, they will be entitled to have the same basic terms and conditions of employment as if they had been employed directly by the hirer. These terms and conditions are:

• key elements of pay
• duration of working time
• night work
• rest periods
• rest breaks
• annual leave
• paid leave for ante-natal appointments.

The new regulations set out those situations in which the ‘service’ of the agency worker will be broken, suspended and continue for the purposes of determining the 12-week qualifying period. Service will be broken where the agency worker starts a new assignment with a new hirer; remains with the same hirer but starts a new, substantively different role; and where there is a break of more than six weeks between assignments with the same hirer.

There are certain situations where weeks worked by the agency worker will not count towards the calculation of the 12-week period, and these include, a break for less than six weeks; a break for up to 28 weeks due to sickness or injury or to perform jury duty; a break caused by a planned shutdown of the workplace by the hirer; and a break caused by a strike, lock out or other industrial action. Where an agency worker has a break in service due to pregnancy, childbirth or maternity, either during pregnancy or for up to 26 weeks after childbirth; or where the agency worker takes maternity, adoption or paternity leave, there will be no break in continuity of service.

Liability and implications for hirers and agencies

In order to comply with the new regulations, organisations who hire agency workers (hirers) should ensure that the agency has up to date information in relation to their terms and conditions in order that the agency can ensure that the worker (after the 12 week qualifying period) receives the same treatment as they would if they had been hired directly by the hirer.

Liability for failure to ensure that the agency worker is given access to collective facilities and amenities, and to be provided with information about employment vacancies within the hirer from the first day of their assignment, lies with the hirer, as the agency will have no control over these matters.

Liability for failure to comply with the regulations in terms of the rights due to an agency worker after the 12-week period lies with the agency. However if the agency can show that it took reasonable steps to find out what the terms and conditions were within the hirer, and ensured that the agency worker was treated in accordance with those provisions, then it will have a defence to any claim.

Hirers and agencies should be aware of the anti-avoidance provision (regulation 9) contained in the regulations. In terms of this regulation, a worker is to be treated as though they are entitled to equal treatment when a structure of assignments develops which is intended to prevent the worker from acquiring equal rights. The regulations lay down specific requirements as to when this situation would arise. Put simply this is when the hirer has completed two or more assignments with the same hirer or a connected hirer, and the most likely explanation for the structure of the assignments is that the hirer or the agency intended to prevent the worker from being entitled to equal treatment under the regulations.

Remedies for breach of the regulations

The new regulations set out the claims that an agency worker can bring in the employment tribunal for breach of the regulations. As usual, the time limit for presenting the claim will usually be three months from the date of the infringement or detriment. Should a claim be successful, the Tribunal can make a declaration, order payment of compensation and make recommendations for action to be taken. Any compensation payable by an agency or hirer will be “just and equitable” having regard to the extent of their responsibility. There is no maximum award which can be made, and the minimum is that of two weeks’ pay, which can be reduced in certain circumstances. Additionally, where there is a prohibited structure of assignments (as mentioned above), a tribunal can award additional compensation of up to £5,000.

Further information

For further information on the issues raised in this ezine, please contact Murray McCall, Alan Masson or your usual contact within the Employment Team.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.