UK: The Agency Workers Regulations

Last Updated: 30 March 2010
Article by Peter Talibart

The Agency Workers Regulations (the Regulations) were published by the Government on 21 January 2010. The intention is that they will come into force on 1 October 2011. The Regulations provide all agency workers with the right to equal treatment with their directly recruited colleagues after 12 weeks in a given job. This edition of Employment Highlights considers the impact of the Regulations on employers who employ agency workers and what they should be doing to prepare for the introduction of the Regulations.

Introduction

The Regulations implement the EU Directive 2008/104/EC dated 19 November 2008 which provides a general framework for the protection of temporary agency workers (the Directive). Member States have until 5 December 2011 to implement the Directive. The Government conducted consultation on the draft Regulations between 15 October and 11 December 2009. The aim of the Directive is to ensure protection by applying the principle of equal treatment which provides that the basic working conditions of temporary agency workers (for example, regarding working time, overtime, holidays, rest periods, holidays and pay) should be, for the duration of their assignment at the hirer, at least equivalent to those which would apply if they had been recruited directly by the hirer for the same job. There are also other entitlements in the Directive, including access to permanent employment and training. In May 2008 the TUC and the CBI reached an agreement about the method of implementing the Directive which would seek to protect temporary agency workers, while still providing the flexibility in the marketplace which the Government was keen to continue to exploit with the use of agency workers. This included, in particular, a 12-week qualifying period for entitlement to the protection (see below). There are other derogations and areas in which Member States have discretion and it was on those areas that the consultation was based.

Who is covered?

An agency worker for the purposes of the Regulations is an individual who is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer. This excludes individuals who are genuinely operating business on their own account: the genuinely self-employed or those who work through their own limited liability companies or those employed on managed service contracts. The definition does, however, include those who operate through a chain of intermediaries or "umbrella" companies. It will be for employment tribunals to determine whether any arrangements are a "sham" put in place to avoid the Regulations.

What is equal treatment?

Subject to Regulation 7 (the qualifying period) the rights of agency workers in relation to the basic working and employment conditions are set out in Regulation 5. This states that agency workers must be afforded the same basic working and employment conditions as they would have received if they had been directly recruited by the hirer as an employee or a worker. Regulation 6 lists the "relevant terms and conditions" as:

  • Pay
  • The duration of working time
  • Night work
  • Rest periods
  • Rest breaks
  • Annual leave.

Pay for this purpose means any sums payable to a worker of the hirer in connection with the worker's employment and will therefore include any fee, bonus, commission, holiday pay or other emolument referable to the employment. The definition is effectively "pay for work done". Certain payments which are normally associated with employment status are excluded, namely, occupational sick pay, pension payments, maternity, paternity or adoption leave payments, redundancy pay, and any bonus which is not directly attributable to the amount or quality of the work done but is given to the worker to encourage loyalty or to reward long term service. It would also exclude profit sharing and share ownership.

The Regulations provide that agency workers should be given the same entitlement to annual leave as a directly recruited colleague, including the right to time off for bank and public holidays. However, there are practical problems which would arise if agencies had to carry forward different contractual leave entitlements from a variety of hirers. Therefore, it will be possible for the worker to be paid in lieu of any amount of holiday above the statutory minimum. Exactly how this is to be calculated has yet to be determined.

What is the Qualifying Period?

The Directive allows for derogations from the basis of equal treatment where agreement is reached between representatives of employers and employees. One such derogation allows for the introduction of a qualifying period. The CBI and TUC reached an agreement in May 2008 for a qualifying period of 12 weeks and this is now included in the Regulations.

To complete the qualifying period the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks during one or more assignments. A new qualifying period would only begin if a new assignment with the same employer was substantively different. In addition, continuity is broken if there is a break of six calendar weeks during assignments in the same job. However, there are anti-avoidance provisions included in Regulation 9 to ensure that unscrupulous hirers do not avoid the Regulations by rotating the workers to ensure that a qualifying period is never satisfied. The Regulation gives the agency worker the right to be protected if a structure of assignments develops.

The Regulations also provide that absence from work should not be taken into account to break continuity of the qualifying period where the individual is absent due to sickness and returns to work within 28 weeks. In addition, continuity would not be broken where there is a temporary cessation of work because of a shut down for seasonal reasons or where the individual is on jury service or unable to work due to a strike or lock out. In all such situations the qualifying period would resume after the period of absence.

There may be difficulty where particular types of workers (such as lorry drivers or hospital workers) are on very short term placements. They may be placed with the same hirer by different agencies. If they work during a 12 week period for that hirer then they will have satisfied the qualifying period. It will therefore be even more important for an agency to ask an agency worker for their recent employment history and to ensure that adequate records are kept to alert an agency that a worker may be near to achieving the qualifying period with a hirer.

Access to employment and collective facilities

In addition to basic employment conditions, an agency worker has, during the assignment, the right to be informed by the hirer of any relevant vacant posts with the hirer to give him the same opportunity as a directly hired employee to employment with the hirer (Regulation 13). This will therefore mean that agency workers must be able to see all vacancies and so, if such vacancies are currently posted in areas not usually accessible to agency workers, then this will need to be changed. This right applies immediately and is not subject to the qualifying period. The right is, however, limited to providing information where there is a comparable worker. This means that it is not necessary for a hirer to provide information on vacancies which may be geographically remote or on the basis of comparison with a predecessor. Further information in the form of guidance is to be published which the Government indicates will make it clear that there will be no breach in situations where a hirer is carrying out an internal reorganisation and there is a headcount freeze.

Another right which an agency worker will acquire from day one will be access to collective facilities such as the use of a canteen or childcare facilities. Less favourable treatment on this basis can be justified on objective grounds. Therefore, if there is currently a waiting list for childcare facilities, there could be no liability for failure to provide the benefit itself as long as the worker was placed on the waiting list.

What liability will an employer suffer?

Pursuant to Regulation 14 the temporary work agency will initially be liable for any failure to provide comparable benefits. However, the agency will have a defence if it can show that:

  • It obtained or took reasonable steps to obtain relevant information from the hirer about the basic working conditions in force at the hirer;
  • Where it received such information, it acted reasonably in determining the agency workers conditions; and
  • Where it had responsibility for applying those basic working and employment conditions to the agency worker, it had ensured that agency worker had been treated accordingly.

If the temporary work agency has taken all these steps, then liability is likely to rest with the hirer. The tribunal can apportion blame where there is more than one agency or party to the proceedings.

In relation to access to collective facilities and vacancies the hirer will be solely responsible for breach of the Regulations.

An agency worker who considers that the hirer or the agency may have breached the Regulations may make a written request to the agency for a written statement containing information relating to the treatment in question. The agency has 28 days to reply to the request. If the agency worker is not provided with the information within 30 days then the request should be made to the hirer. Alternatively, the request should be made directly to the hirer in relation to the rights conferred on day one. Again the hirer has a period of 28 days in which to reply.

If a worker goes on to make a complaint to a tribunal then the tribunal may draw inference from any failings on the part of the agency or hirer to provide the relevant requested information.

A worker has three months to bring a complaint to an employment tribunal. The tribunal can make a declaration, recommend steps that the respondent should take and order compensation. There is no maximum limit to any compensation awarded to successful claimants, but a minimum of two weeks pay should normally be awarded by the tribunal in relation to failure to provide equal terms and conditions.

Where a tribunal makes a finding under the anti-avoidance measures for the qualifying period the tribunal may make an additional award of compensation which shall not be more than Ł5,000.

Are there any other changes in relation to agency workers?

Amendments will be made to other legislation which will give agency workers the right to information in particular employment situations, such as on collective redundancy or the transfer of an undertaking

What steps should employers take?

While waiting for the Regulations to be implemented, employers should do the following:

  • Consider the use of agency workers within their organisation and how the Regulations will affect the pay and benefits to which they are entitled.
  • Consider what changes may need to be made to the other relevant working conditions of agency workers.
  • Consider record keeping processes and decide what information needs to be requested from the agency workers to make it clear when they have satisfied the qualifying period.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.