Agency Worker Regulations Orlando Holloway

THE QUALIFYING PERIOD

Main Principles:

a) 12 consecutive calendar weeks

b) same hirer (legal identity not location)

c) not retrospective

Reason for Break Effect

Change of role Resets

Break of 6 weeks + Resets

Less than 6 week break Pauses

Sickness absence Pause (28 week max)

Annual Leave Pauses

Jury Service Pauses (28 week max)

Shut Downs Pauses

Pregnancy and Maternity-related absence

Clock keeps ticking

Statutory maternity, paternity or adoption leave

Clock keeps ticking

The Same Role

Will depend upon all the circumstances whether it is substantively different work, but some relevant considerations are likely to be:

a) are different skills and competences used?b) is the pay rate different? c) is the work in a different location/cost centre? d) is the line manager different? e) are the working hours different?f) the role requires extra training – and/or a specific qualification that wasn’t needed before? g) is different equipment involved?

THE RIGHTS

The same basic conditions as if they’d been recruited by the hirer directly.

The conditions will derive from the contract of employment and will cover:

a) pay b) duration of working time; c) night work; d) rest periods; e) rest breaks; andf) annual leave

Pay Includes:

a) basic pay based on annual salaryb) overtime payments c) shift allowances and the liked) payment for annual leavee) bonus or commission payments attributable directly

to the amount or quality of the work done by an individual

f) vouchers or stamps with monetary value (e.g luncheon vouchers)

Pay does not include:

a) occupational sick pay;

b) occupational pensions;

c) occupational maternity pay;

d) redundancy pay;

e) paid time off for trade union duties;

f) notice pay;

g) advances in pay or loans (e.g season ticket loans);

h) expenses (e.g travel and accommodation);

i) payments or rewards linked to financial participation schemes (e.g. share ownership schemes);

j) any payments that require eligibility for which a worker or employee recruited at the same time as the agency worker would not have fulfilled either;

h) discretionary bonuses (as long as they are not paid with such regularity as to have become an implied term of the contract by custom and practice);

Bonuses and commissions

Will be payable if attributable to the amount and/or quality of the work done by the agency worker.

Working Time and Annual Leave

After the qualifying periods agency workers must be provided with the same terms as a worker who had been directly recruited by the hirer in respect of working time and annual leave including:

a) Duration of work;

b) Night work;

c) Rest periods;

d) breaks;

e) Annual leave

Case Study 1

A started working on assignment at H on Saturday 2 July 2011. He worked every Saturday, Tuesday and Wednesday from then until the week commencing 29 October 2011. He was then off sick for 14 weeks before returning to the assignment and working for a further 4 consecutive weeks. He then took annual leave for 2 weeks before returning to assignment for a further 6 consecutive weeks.

Has A qualified for the regulation 5 rights?

Case Study 2

A starts working on assignment on a production line for 3 weeks before she is moved into an administrative role for which she is given additional training and where she works for 10 weeks. The administrative role is at the same location but is reporting to a different manager, has different rates of pay and is a 9am – 5pm job rather than working the night shift.

Has A qualified for the regulation 5 rights?

Case Study 3

H has various pay scales to cover its permanent workforce, including its production line. An agency worker is recruited on the production line and has several years’ relevant experience. However the agency worker is

paid at the bottom of the scale.

Is this equal treatment?

Case Study 4

H engages an agency worker as a receptionist for the first time. The company does not have anyone doing the same job and does not have pay scales or collective agreements. The Agency worker is paid at the

same rate before and after the 12 week qualifying period.

Is this allowed?