Although the legislation process for the Agency Workers Regulations began in 2008, the Government guidance was not completed until May of this year. This delay has resulted in many organisations being unsure of the implications of the Regulations and therefore ill-prepared for the changes that they bring.
The aim of the legislation is to provide the same treatment for temporary workers as for permanent employees. After completing a qualifying period of service on an assignment, all workers should expect to benefit from the contractual terms of permanent employees as regards certain pay conditions, hours of work and rest, and holiday entitlements that are above the statutory minimum.
With regard to equal pay conditions, equality will include commission and bonuses earned but not sick pay or pension arrangements. Maternity, paternity or adoption leave pay is also excluded under the Regulations, along with redundancy payments and financial participation schemes. It is possible for agencies and workers to agree to opt out of equality for pay conditions only. In these circumstances, a “derogation contract” should be entered into. This must comply with certain rules and it would be wise to seek professional guidance before implementation.
These regulations only apply to temporary workers and only to those who have been supplied to the hirer by traditional employment agencies or other third parties. This includes contract arrangements with umbrella companies.
Under these Regulations, there is specific guidance for schools and institutions using temporary agency workers within the education sector. It is important for such institutions to be aware of the implications of being the “hirer” for the purpose of the Regulations. It may be that it is the school itself that holds this position, particularly in maintained schools where the school is the legal entity to which the worker is supplied. However, in community schools and voluntary controlled schools, it is the local authority that is classed as the hirer and a worker whose assignments move him to different schools under one local authority will be assumed to have continuous service from the start of the first appointment. In Independent Schools, the hirer is the proprietor of the school. When agency workers move from one independent school to the next, the hirer will usually change with the move. However, in cases where a single proprietor has more than one school, this is not the case. It is very important that school leaders are aware of these facts as it effects the calculation of the worker’s qualifying period.
In order for agency workers to qualify for equal treatment under the Regulations, they need to have completed 12 continuous calendar weeks, either full-time or part-time in the same or a broadly similar role with the hirer. For workers currently employed in an assignment, this period is deemed to have begun on October 1st 2011 when the Regulations came into force.
A break of more than six weeks between assignments will break the continuity of the qualifying period. However, it is specifically stated for workers in schools, that closures for school holidays will not be accepted as such a break. During the holidays, the worker’s assignment is counted as being suspended and the qualifying period will continue from where it left off at the start of the new term. The implications of this will need careful assessment.
In addition to the rights that agency workers should receive after completing the 12 week qualifying period, there are two rights to equal treatment that should be applied immediately at the start of the assignment. These are referred to as Day 1 Rights. Full liability for a failure to comply with these rights lies with the hirer. These rights are
1. the right to equal treatment in relation to access to collective facilities and amenities, such as staff canteens and childcare
2. The right to be provided with the same information regarding current vacancies as is provided to permanent staff.
If an agency worker brings a complaint of unequal treatment under the Regulations, it will usually be against both the agency and the hirer. Where an agency can show that it has made a reasonable effort to ensure equal treatment, liability will fall on the hirer. If it appears that assignments have been deliberately structured so as to avoid the obligations of the Regulations, a fine of up to £5,000 may apply.
For further details of the Regulations and all other aspects of employment law that may affect your business, please contact our specialised employment lawyers at Q&A Law for a free initial consultation.
