Transcript How to Win in Tribunals

The Agency Workers Regulations 2010
Jon Taylor
17 September 2010
The Agency Workers Regulations 2010
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Due to come into force on 1 October 2011
Certain aspects of the Regulations are supported by guidance – due early
2011
Apply to Great Britain
What are the views of the coalition government?
What to the Regulations do?
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Provide a framework for basic waiting and employment for agency workers
that are no less favourable then if they had been recruited direct
Equal access to facilities and permanent employment
Penalties of non-compliance by agencies and end users
Who is covered?
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Agency workers who find temporary work through a temporary work
agency
Doesn’t apply to the genuinely self-employed or those who work through
their own limited-liability company
Temporary work agency (regulation 4)
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:
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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
Agency worker (regulations 2 and 3)
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Supplied by a temporary work agency
To work temporarily for and under the supervision and direction of a hirer
Has a contract with the temporary work agency which is a contract of
employment with the agency or any other contract to perform work and
services personally for the agency (regulation 3(1))
What about those who have a contract with the agency to perform services
for the hirer?
Being employed or otherwise engaged by an agency includes those circumstances
in which a worker is supplied through one or more intermediary (regulation 3(3)
to (5)) – Umbrella Companies
Hirer (regulation 2)
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“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"
Potential derogation for public vocational training and retraining programmes
The right to equal treatment (regulation 5)
An agency worker (A) will be entitled to:
"... the same basic working and employment conditions as A would have
been entitled to for doing the same job had A been recruited by the hirer
(a) other than by using the services of a temporary work agency; and
(b) at the time the qualifying period commenced
The right to equal treatment (regulation 5)
In order to show unequal treatment A will need to:•
identify a directly recruited comparator at the hirer’s business
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identity the relevant terms and conditions included in the comparators
contract
The comparator can be:•
real or hypothetical
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a ‘worker’ or ‘employee’
But, there is defence for the hirer if he can show an actual comparator working
under the same terms and conditions (and where those terms and conditions are
normally included in comparators contracts)
Deemed Compliance
A and the comparator are comparable if, at the time when the alleged breach of
the right takes place, both are:
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Working for and under the supervision and direction of the hirer, and
Engaged in the same or broadly similar work having regard, where relevant,
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to whether they have a similar level of qualification and skills, and
The comparator works or is based at the same establishment as A
If there is no local comparator, the hirer can use a comparator who works or is
based at a different establishment, but the hirer cannot use an ex-employee
Basic working and employment conditions
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Pay
Duration of working time
Length of night work
Rest periods
Rest breaks
Annual leave
Must be “ordinarily included”
Pay (regulation 6(2))
“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 [listed in regulation 6(3)]"
Pay therefore includes
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Basic pay
Holiday pay (and time off in relation to public and bank holidays)
Overtime pay
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Shift allowances
Unsocial hours premiums or bonus
Additional payments for particularly difficult and dangerous duties
Bonuses linked to individual performance (for example, piece-work bonus
which is linked to output and those based on performance appraisal
arrangements)
Vouchers or stamps with a monetary value, such as luncheon and transport
vouchers
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Pay does not include
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Profit share or share participation which reflect long-term performance or
reward loyalty)
Financial participation schemes (defined as distribution of shares, share
options and profit sharing)
Occupational sick pay
Occupational Pensions (but note the effect of Pensions Act 2008 from 2012)
Contractual notice pay
Contractual redundancy pay
Benefits in kind such as company car allowances or health insurance
The 12-week qualifying period
12 calendar weeks
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Requires an agency worker to undertake the same role
On one or more assignments
With the same hirer
For 12 continuous calendar weeks (regulation 7(2))
Any week during the whole or part of which an agency worker is engaged on an
assignment is counted as a calendar week (regulation 7(4))
The "same role"
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Continuity will be broken if where "the work or duties that make up the whole
or the main part of that new role are substantively different from the work or
duties that made up the whole or main part of the previous role" (regulation
7(3)(b))
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The worker would have to commence a new, separate assignment with the
hirer. They cannot simply be switched between roles in the context of the
same contract with the agency
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The meaning of “substantive” will be set out in guidance
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Agencies will be required to provide a written description of the new work the
agency worker will be required to undertake
Anti-avoidance provisions (regulation 9)
This gives a worker the right to be treated as if they were entitled to equal treatment if a
structure of assignments develops, within either the hirer or between that hirer and connected
businesses
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Factors to be considered
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The length of the assignments
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The number of assignments with the hirer and, where applicable, hirers connected to that
hirer
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The number of times the agency worker has worked in a new role with the hirer and,
where applicable, hirers connected to that hirer and whether or not the new role was the
"same role"
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The period of any break between assignments with the hirer and, where applicable, hirers
connected to that hirer
Additional award of up to £5,000 to prevent abuse.
Breaks during (or between) assignments (regulation 7)
A break of 6 calendar weeks, either during or between assignments, would be needed before
it is necessary to re-start the time that counts towards the qualifying period (regulation 7(4)
and (6)(a))
Some absences will not count towards the qualifying period
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Sickness absence of up to 28 weeks
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Statutory or contractual time off or leave (other than maternity, paternity or adoption leave
for which specific provision has been made), for example, annual leave
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Jury service of up to 28 weeks
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Custom and practice of the hirer
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A strike, lock-out or other industrial action at the hirer's establishment
Breaks during (or between) assignments
Some absences from work will count towards the qualifying period
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Weeks during which a worker is absent for certain reasons related to pregnancy,
childbirth or maternity for a protected period of up to 26 weeks after a woman
has had her child
Weeks when the worker is absent on statutory or contractual maternity, paternity
or adoption leave (regulation 7(5), (6) and (8)(d)(i),(ii) or (iii))
Pregnant women and nursing mothers
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Right to reasonable time off during working hours to attend ante-natal
appointments (a new section 55A of ERA 1996)
Right to be paid by the agency during such absence at the appropriate hourly
rate (a new section 56A of ERA 1996) subject to
Informing the hirer and the agency of the pregnancy, in writing if requested
and
Where requested by the hirer and/or agency providing written evidence of
ante-natal appointments
Unreasonable refusal of time off or non-payment during her absence risks an ET
claim (a new section 57AA of ERA 1996)
Pregnant women and nursing mothers
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Duty to make adjustments
Cessation of supply and appropriate alternative work
What if there is no appropriate alternative work?
Employment vacancies (regulation 13)
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Right to be told of relevant vacancies
Right subsists from start of the assignment
Must be given the same opportunity as a comparable worker to find work with
the hirer
Employment vacancies – what do you need to do?
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Notification by “a general announcement in a suitable place in the hirer's
establishment" will be sufficient (regulation 13(4))
Does this obligation constrain the imposition of employer-specific qualifications
or experience?
What about internal transfers and hiring freezes?
Access to onsite facilities (regulation 12)
Right to equal treatment as regards access to "collective facilities and amenities"
which include, in particular:
– Canteen or other similar facilities
– Child care facilities
– Provision of transport services
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Liability for failure to provide access will be on the hirer
Failure can be justified on objective grounds
Liability for equal treatment (regulation 14)
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The Agency is responsible for any breaches of rights in relation to agency
workers' basic working and employment conditions to the extent that it is
responsible for the infringement (regulation 14(1))
“Reasonable Steps” defence
The hirer is responsible for any breach to the extent that it is responsible for
the infringement, having regard to the steps it has taken to enable the agency
to provide information to the agency worker
No joint and several liability
Information on equal treatment for workers (regulation 16)
Right to a written statement within 28 days of a written request to their temporary
work agency setting out
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Relevant information relating to the hirer's basic working and employment
conditions
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Factors the temporary work agency considered when determining the basic
working and employment conditions which apply to the agency worker
following the qualifying period
Information which explains the basis on which it is considered that a person is
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a comparable employee; and the basic working and employment conditions in
force at the hirer that apply to that employee
Information on equal treatment for workers (regulation 16)
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If the worker has not been provided with statement within 30 days of making
the request, he can seek the information from the hirer
The hirer must provide the information in writing within 28 days of a written
request (regulation 16(4))
Failure to respond entitles tribunal to draw adverse inferences
Similar rights to information for infringement of right of access to employment and
collective facilities or training.
Enforcement
Tribunal claims for breach of the rights to:
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Equal treatment after the 12-week qualifying period
Access to employment and collective facilities
Not be subjected to detriment (regulation 18(2))
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Provision of information under regulation 20 (regulation 15(2)(b))
Enforcement - time limits
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3 months from the date of the infringement or detriment
"just and equitable" to do so (regulation 18(4))
Eligible for pre- and post-claim ACAS conciliation
Enforcement – Remedies
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Declaration
Compensation ("just and equitable")
Recommendations for action to be taken
The Agency Workers Regulations 2010
Jon Taylor
17 September 2010