The agency workers regulations 2010 - An update

The Agency Workers

Regulations 2010

Thursday 27 September 2012

©Langleys Solicitors LLP 2012

Introduction

• Agency Workers Regulations 2010

– What are the Regulations and who do they apply to?

– The TWA – “12 week rights”

– The Hirer – “Day One Rights”

– How to deal with the effects of the Regulations


What are the Agency Workers Regulations 2010?

• The Agency Workers Regulations 2010 (AWR

2010) give Agency Workers (AWs) the right to

equal treatment compared with employees

recruited direct by the Hirer (Comparable Direct

Recruits (“CDRs”) in respect of: -

– Pay

– Duration of working time

– Night work

– Rest periods

– Annual leave

– Access to facilities and employment

vacancies


Who do the Regulations apply to?

• Agency Workers who find work through a

Temporary Work Agency (TWA) whose function is to find Agency Workers for a Hirer


Definitions – Temporary Work Agency

• Regulation 4(1):

“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 work temporarily for an under the supervision and direction of hirers.”


Definition - Agency Worker

• Regulation 3(1): -

– A worker who is supplied by a TWA to work temporarily for and under the supervision and

direction of a Hirer; and

– Has a contract with the TWA

which is either:

• A contract of employment with

the TWA

• Any other contract to perform

work and services personally


Definition – Hirer

• Regulation 2: -

– “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”.


Do the Regulations apply to your business?

- Businesses who take Day Work provision from a TWA.

- Not package work: this is where the Hirer pays an organisation to undertake a project on their behalf. These workers are not Agency Workers.


What obligations do the Regulations set out?

• Two sets of obligations: -

1. “Day One Rights” – responsibility of the Hirer

2. “12 week rights” – responsibility of the TWA


“12 week rights” – the qualifying period

• AWs are entitled to equal treatment with CDRs if they

perform the same role with the same Hirer for 12 continuous calendar weeks (“the qualifying period”)

(Regulation 7(2))

• 12 weeks do not have to be complete weeks of work – at

some point during week AW engaged on an assignment (Regulation 7(4))

• After the qualifying period the CDR’s terms and

conditions become the minimum terms and conditions an

AW can receive


Breaks in continuity of the 12 week qualifying period

• AW starts a new assignment with a new hirer

• AW - new assignment with same TWA that is “substantially different” from previous assignment

• Break of 6 calendar weeks or more

• Certain absences e.g. a break of up to 28 weeks due to sickness or injury incapability will not break continuity

• Absences due to pregnancy, childbirth or maternity or leave relating to these – 12 weeks unaffected


“Day One Rights” – the Hirer

• Two main categories of “Day One Rights”:

– Access to collective facilities and amenities: equal right to facilities as CDRs

– Access to employment vacancies: Hirer required to tell AWs about any relevant vacancies

– “Day One Rights” apply from the moment the AW is on the Hirer’s premises

– The Hirer’s responsibility


“12 week rights” – relevance to hirers

• The Hirer also has a responsibility to provide information to allow the TWA to provide equal treatment as to the 12

week rights

• Breach of this by the Hirer (e.g. late, incorrect or failure

to provide information) – Hirer held responsible


The Uncertain Respondent

• Employee becomes aware that their rights under the

Regulations have been breached - unsure as to who is responsible. Is the default due to failure to provide

information (Hirer) or failure to apply information (TWA)?

• The employee would be well advised to pursue both the

Hirer and the TWA.

• The ET would order a pre-hearing review to establish

who is the correct respondent.


How can TWAs reassure their Hirer clients?

• Managed Service Contracts

• The “Swedish Derogation”

• Rotation of Employees

• An Indemnity


Managed Service Contracts

• Option is only available to organisations that have the necessary expertise and structures in place.

• The Hirer would specify a task they would like an organisation to undertake and would allow the organisation to provide and manage workers through it. The workers may not fall under the Regulations.


The Swedish Derogation

Member States may…

provide that an exemption may be

made to the principle [of equal treatment] where temporary agency

workers who have a permanent contract of employment with a TWA

continue to be paid in the time between assignments" (Article 5.2).


The Swedish Derogation

• Regulations 10 and 11 reflect this. The AW will need to enter into a “Pay Between Assignments Contract”

• Advantage: the obligation to ensure equality of pay is removed (but onlypay)

• Disadvantage: paying workers who are not working – who pays. TUPE!


Rotation of employees – anti-avoidance provisions

• Problem – Hirers are not allowed to simply rotate AWs to avoid them accruing 12 weeks of continuous service

• Anti-avoidance provisions (Regulation 9)

• Can rotate AWs – genuine reason which is not avoidance

• Breach – AW treated as if accrued 12 week rights. Potential £5,000 fine for responsible party


An Indemnity

• Best way for TWAs to reassure their Hirer clients that the Regulations will not trouble them

• TWA indemnifies Hirer against any breach of Regulations – provision in contract

• Indemnity qualified – Hirer is responsible for “Day One Rights” and provision of information


Pregnant Women & Nursing Mothers


• Paid time off for ante-natal medical

appointments and classes.

• Alternative work – no less favourable; or

• Full pay for the remainder of the assignment

Enforcement

• Right not to be dismissed on prescribed grounds

• The right not to be subjected to a detriment on prescribed grounds

• Equal treatment rights infringed

• Rights of access to employment or facilities have been breached

• Providing pay between assignments has been breached

• Agency or hirer has unreasonably refused a woman paid time off for ante-natal care

• Agency or hirer has failed to pay the agency worker remuneration where the supply of her work to a hirer is ended on maternity grounds


Information Requests

• Similar to Fixed Term workers

• Make a written request – informally

• Formal Structure

• Adverse inferences from failure to respond


Remedies

• Week 12 Rights– TWA responsible for any breaches of rights in relation to an

agency worker's basic working and employment conditions to the extent that it is responsible for the infringement

– Defence - took "reasonable steps" to obtain relevant information from the hirer and acted "reasonably" in determining the agency worker's basic working and employment conditions after the qualifying period and for the remainder of the assignment.

– Then hirer will be fully responsible for any breach.

– No equivalent defence for hirers


Remedies

• Week 12 Rights– Hirer responsible for any breach to the extent that it is

responsible for the infringement

– Multiple TWAs involved in proceedings

– TWAs and hirers not jointly and severally liable for breaches

– Exchange information in a timely manner.


Reasonable Steps Defence

Drafting errors in relation to the "reasonable

steps" defence were highlighted by the Joint

Committee on Statutory Instruments in March

2010 and were corrected by the Agency

Workers (Amendment) Regulations 2011.


Remedies

• Day 1 Rights– The hirer will be solely responsible for any breach

of regulations access to collective facilities and amenities and access to employment vacancies


Contracting Out

– Notably, there has not been an amendment to section

203(2)(f) of the ERA 1996 so as to include the Regulations, and neither have the provisions of

section 203 been replicated in the Regulations

themselves, so:

• no effective mechanism for waiver of claims by means of a

compromise agreement.

• Possible to settle claims pursuant to an Acas-conciliated

agreement.


Action points - TWA

• See handout for TWAs and Hirers


Any Questions?


Contact Details

Kate Hindmarch Phone No: 01522 508815Email: [email protected]

Kelly Taylor Phone No: 01522 508785 Email: [email protected]

Danielle Lister Phone No: 01522 508715 Email: [email protected]

Rachael Keightley Phone No: 01522 508817 Email: [email protected]

Website: www.langleys.com Twitter: @langleyslaw


Documents

The agency workers regulations 2010 - An update