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The Agency Workers Regulations 2010

28th September, 2011

The Agency Workers Regulations 2010 (“the Regulations”) come into force on 1 October 2011. Under the Regulations (which implement the EU Agency Workers Directive):

• Agency workers will be entitled to the same basic working and employment conditions as those employed directly by the hirer on completion of 12 consecutive weeks in the same role for the same hirer.

• In calculating the 12-week qualifying period, breaks between assignments or during an assignment will not break the continuity if they are for not more than six weeks or are for one of a number of specified reasons, including sickness or injury, pregnancy, childbirth or maternity or maternity, adoption or paternity leave.

• Basic working and employment conditions are those relating to pay, working time, rest breaks and annual leave. Pay for these purposes is any amount paid in connection with the employment or engagement and includes bonuses, fees or commissions that are directly attributable to the amount or quality of the work done by the worker and benefits in the form of fixed value vouchers or stamps. Pay does not include contractual payments relating to sick leave, pension, redundancy or maternity, adoption or paternity leave.

• Agency workers that have permanent contracts of employment with temporary work agencies, under which they continue to be paid the “minimum amount” when they are available to work but are not placed on an assignment with a hirer, are excluded from the right to equal pay. Under the Regulations the “minimum amount” that agency workers must receive during such period is pay equal to 50% of the highest level of pay that they have received within the previous 12 weeks of an assignment.

• Agency workers can claim compensation where they have been denied the terms and conditions granted under the Regulations. This compensation will be for an amount that the Employment Tribunal considers just and equitable taking into account the loss suffered as a result. Both temporary work agencies and hirers will be liable to pay this compensation to the extent they are responsible for the breach of the Regulations. The temporary work agency can escape liability by showing that they have requested the relevant information from the hirer, used it to determine what terms and conditions the agency worker is entitled to and provided those terms and conditions. If this is shown, the liability will fall solely on the hirer.

• There are express anti-avoidance measures. These address concerns that temporary work agencies and hirers would simply structure assignments by, for example, rotating agency workers to ensure that they never complete 12 consecutive weeks in the same role for the same hirer. Where a temporary work agency or hirer is found to be in breach of this provision, the Employment Tribunal is also entitled to make an additional award of compensation of up to £5,000.

• Agency workers will also have the right to access the same collective facilities and amenities as permanent workers and to be informed of any relevant job vacancies with the hirer. Collective facilities and amenities include staff canteen, childcare and transport facilities. There is no qualifying period for this right to apply and agency workers will be entitled to this from their first day. Liability for non-compliance in respect of this rests with the hirer.

• In order to assess whether or not they are suffering a detriment on the grounds of their status, agency workers will also have the right to request information relating to terms and conditions first from the temporary work agency and then from the hirer.

Employers who make use of agency workers are strongly advised to read the final guidance on the Regulations (which was published by the Department for Business, Innovation & Skills on 6 May 2011) and to get to grips with the Regulations prior to their implementation in a few weeks time.

For further information on the Regulations or assistance with any other employment law matter please contact Helen Watson at Aaron & Partners LLP on 01244 405565 or email her at [email protected]

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