A Top 100 Law Firm Agency Workers Regulations 2010

A Top 100 Law Firmwww.dmhstallard.com

Agency Workers Regulations 2010

www.dmhstallard.com DMH Stallard LLP

Introduction• 1.3 million agency workers in UK

• Agency Workers Directive 2008/104/EC

• Due to come into force in UK on 1 October 2011

• Guidance issued by BIS

• Guidance issued by DfE


Overview of the Regulations

• What will they get?:– same basic working and employment

conditions, – equal access to facilities and

permanent employment, – improved access to some facilities

between assignments

• Non-compliance Penalties


Part 1: Definitions

• Agency Worker

• Temporary Work Agency

• Hirer


“Agency Worker”

• “An individual:–supplied by a temporary work

agency to work temporarily for and under the supervision and direction of a hirer; and


“Agency Worker” (continued)

- has a contract with the temporary work agency which is:

(i) a contract of employment with the agency; or

(ii) any other contract to perform work and services personally for the agency


“Temporary Work Agency”• “A person engaged in the economic activity,

public or private, whether or not operating for profit, and whether or not carrying on such activity in conjunction with others, of:

(a) supplying individuals to work temporarily for and under the supervision and direction of hirers; or

(b) paying for, or receiving or forwarding payment for, the services of individuals who are supplied to work temporarily for and under the supervision and direction of hirers."


“Hirer” (1)

• “A person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person”


“Hirer” (2)

• Maintained Schools

• Academies

• Independent Schools


Part 2: Rights

• Same basic working and employment conditions as if they had been recruited directly into the same job as a permanent employee


Qualifying Period

• 12 continuous calendar weeks• Includes any part of week• Same role with same hirer • ‘substantially different’ role

– change to duties– not simply switching roles in same

context– further guidance


Entitlement to rights

• Once met 12 weeks qualification then entitled to rights from then on

• Runs as long as worker in same role

• Includes any return to role within permitted time (e.g. allowed breaks)


Breaks (1)

• 6 weeks break or more = stops time running

• less than 6 weeks break = time starts from last week clocked


Breaks (2)

• Not counted as ‘breaking’ time:– sickness absence up to 28 weeks– statutory or contractual time off (annual

leave)– jury service up to 28 weeks– strikes/lock down– temporary cessation of work (e.g. summer

holidays)

• Statutory or contractual reasons (maternity etc)


Assignment structure

• Anti avoidance provision • If worker would have qualified but

for:– use of different agencies or – use of different roles AND

• Intention to avoid regulations• Award of up to £5,000


Relevant Terms and Conditions

•basic pay, •contractual payments•duration of working time, •night work•rest periods/ breaks and •annual leave


Pay

“any sums payable to a worker of the hirer in connection with the worker's employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under contract or otherwise but excluding any payments or rewards”


What is included in Pay?

• holiday pay• paid bank holidays• overtime rates• shift allowances• unsocial hours premium• bonuses related to performance


Not included in Pay

• Sick pay• Pension• Maternity, paternity, adoption

leave pay• redundancy pay• share/option schemes• advances/loans/expenses• guarantee payments


Teacher’s Pay

• Nature of role not qualifications of agency worker

• “Specified Work” • School Teachers’ Pay and Conditions

Document • Holiday Pay


Comparator

• Identify real comparator• Employees• Current employees only• Comparator must be:

– doing broadly similar work– in same organisation or– different organisation but satisfies

other requirements


Rights of access: Collective facilities and amenities

• Includes:– canteen, child care facilities, transport

services• No less favourably than comparable worker• During duration of assignment (from day 1)• Hirer responsible for any breach• Further guidance to be issued


Right to access to employment

• Right to be informed of relevant vacant posts

• Objective to find permanent employment with hirer

• During duration of assignment (from day 1)

• General announcements/notices


Part 3: Liability, Protections and Remedies

• Agency liable for breaches:– of providing same basic rights– unless taken “reasonable steps”

• Hirer liable for breaches:– of access to facilities– of providing vacancies information


Unfair dismissal• If employee:

– automatic unfair dismissal if connected to exercising rights

• All have right not to be subjected to detriment

• Claim can be brought against hirer or agency


Claims to Tribunal

• Time limit – 3 months from breach

• Extension of time

• Remedies– declaration– compensation– recommendation


Compensation• 2 weeks+ pay

• Contributory fault reduction

• Split between respondents

• Increase if recommendations ignored

• £5,000 fine for avoidance


Practical Points (1)

• Do you know the make-up of your temporary workforce?

• Do you tend to use agency workers for 12 weeks or more?

• Do you currently allow agency workers to use on-site facilities?

• Do you currently advertise all vacancies to your agency workers?

• Have you considered the cost implications of the need to equalise basic pay, working hours, break times etc?


Practical Points (2)

• No need to equalise redundancy pay or sick pay

• no way of knowing if agency worker will complete 12 week qualification period: - provide all rights from Day 1?

- system in place to record 12 weeks? - convert all agency staff to employees? • what information should you provide

the agency with?

Documents

A Top 100 Law Firm Agency Workers Regulations 2010