Transcript Slide 1

The Agency Workers
Regulations 2010
____________________
Esther Martin
CM Murray LLP
CM Murray LLP: Specialists in Employment and Partnership Law
THE AGENCY WORKERS
REGULATIONS 2010
• Implementation of European
legislation: Temporary Agency
Workers Directive 2008/104/EC
• Due to come into force 1 October
2011
CM Murray LLP: Specialists in Employment and Partnership Law
Who will the regulations
apply to?
Agency Workers:
– supplied by a temporary work agency
– to work temporarily for and under the supervision and
direction of a hirer; and
– have a contract with the temporary work agency
Regulation 3(1)
CM Murray LLP: Specialists in Employment and Partnership Law
Access to employment,
facilities and training
From day 1 of the assignment hirers
must provide:
(a) Information about job vacancies; and
(b) Access to collective facilities, e.g.
o Canteen
o Communal break areas
o Childcare facilities
o Car parking
o Prayer room
CM Murray LLP: Specialists in Employment and Partnership Law
Twelve week qualifying
period
“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.”
Regulation 7(2)
• Continuity can be broken or suspended in certain
specific circumstances
CM Murray LLP: Specialists in Employment and Partnership Law
Anti-avoidance
provisions
• The Regulations contain a non-exhaustive list of
factors to be taken into account whether a
structure of assignments is intended to deprive
the agency worker of rights.
Regulation 9(5)
• Additional award of up to £5,000 where a hirer
and/or agency are found to have breached the
anti-avoidance provisions.
Regulation 18(14)
CM Murray LLP: Specialists in Employment and Partnership Law
Agency Worker Rights
(after week 12)
An agency worker (A) is 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.”
Regulation 5(1)
CM Murray LLP: Specialists in Employment and Partnership Law
“basic working and
employment conditions”
o
o
o
o
o
o
Pay
Duration of working time
Length of night work
Rest periods
Rest breaks
Annual leave
• Comparator required
• Terms must be ‘ordinarily included’
CM Murray LLP: Specialists in Employment and Partnership Law
Pregnant women and
nursing mothers
• Subject to the 12 week qualifying period
• Agency workers are entitled to:
– reasonable time off during working hours to attend
ante-natal appointments
– payment from employment agency during her
absence
• She may lodge a tribunal claim if a request is
unreasonably refused
• Duty to make reasonable adjustments on hirers
CM Murray LLP: Specialists in Employment and Partnership Law
Practical tips for hirers
Always ask:
1. Is the worker a temp from an agency?
2. Have they ever worked for you (or a connected
business) previously?
3. Are they likely to qualify for equal treatment?
4. How long is the assignment likely to last?
5. What benefits and other terms will have to be
offered and when?
CM Murray LLP: Specialists in Employment and Partnership Law
Default Retirement Age
______________________
Bettina Bender
CM Murray LLP
CM Murray LLP: Specialists in Employment and Partnership Law
Default Retirement Age
WHAT IS CHANGING?
WHAT ISN’T CHANGING?
Employers will no longer be able to
use the DRA of 65 to maintain a
compulsory retirement policy for their
workforce:
Objective justification:
Employers may still operate a
compulsory retirement age
except that from April 2011 they
will need to objectively justify it
(as they have up to now for
retirement ages below 65)
•
•
From 6 April 2011: No new
notifications of retirement on basis
of DRA to be issued
1 October 2011: DRA and
statutory “duty to consider”
retirement procedures will be
abolished
CM Murray LLP: Specialists in Employment and Partnership Law
Option 1: Having a
Compulsory Retirement Age
1.
Legitimate aim
-
Workforce planning/succession
Facilitating the recruitment and
retention of younger employees
“Collegiality”
Increased costs e.g. pensions
and benefits
(Seldon v Clarkson, Wright & Jakes and another)
2.
Proportionate
-
European Cases
(Wolf, Peterson, Rosenbladt)
v
UK Cases
(Martin, Hampton, Baker)
Balancing act
Why that cut off point?
Criterion other than age?
Consistency?
Evidence
CM Murray LLP: Specialists in Employment and Partnership Law
Option 2: Removing the
Compulsory Retirement Age
• Follow a fair procedure and rely on one of the 5 other potentially fair
reasons for dismissal:
–
–
–
–
–
Conduct
Capability/Qualifications
Redundancy
Statutory restriction
“Some Other Substantial Reason”
• Change in corporate culture
• Adequate Performance Procedures
• Using appraisal process to discuss future plans
• Recruitment
CM Murray LLP: Specialists in Employment and Partnership Law
Next Steps/Issues to Consider
Option 1: Retaining an EJRA
Option 2: No Retirement Age
•
•
Document how the Company has
come to its decision
• Identify business needs and
legitimate aim
• Compile evidence to show why
that age has been decided upon
and why other criterion cannot be
used
• Consultation Exercise?
For all companies:
•
•
Adequate Performance Procedures
and appraisals in place
Consider flexible working
arrangements
Ensure line managers know how to
deal with long term sickness
absence
•
Amendments to contracts of employment, staff handbook, pensions and share
schemes (good leaver/bad leaver status)
•
Training Requirements
•
Provision of benefits
CM Murray LLP: Specialists in Employment and Partnership Law
Positive Action Provisions
under the Equality Act 2010
______________
Esther Martin
CM Murray LLP
CM Murray LLP: Specialists in Employment and Partnership Law
Political correctness
gone mad?
‘WHITE MEN FACE JOBS BAN’
Daily Express, June 2008
‘Employed because I was black:
Positive discrimination robs people
of their drive to succeed’
Daily Mail, April 2011
CM Murray LLP: Specialists in Employment and Partnership Law
Equality Act 2010
General Rule:
Individuals should not be treated less favourably
because of:
•
•
•
•
•
Age
Disability
Race / nationality
Religion or belief
Gender reassignment
• Sex
• Sexual orientation
• Marriage or civil
partnership
• Pregnancy and
maternity
CM Murray LLP: Specialists in Employment and Partnership Law
Exceptions: pre-April 2011
• Occupational Requirement
Schedule 9
• Disability / Pregnancy / Age
s13(3)/
S13(6)(b)/
Schedule 9
• General Positive Action
S158
CM Murray LLP: Specialists in Employment and Partnership Law
s159: Recruitment and
Promotion (part 1)
Where an Employer reasonably thinks that
persons with a particular protected characteristic
are disadvantaged, or their participation in an
activity is disproportionately low…
…the Employer can treat a person with that
relevant characteristic more favourably in
recruitment and promotion.
CM Murray LLP: Specialists in Employment and Partnership Law
s159: Recruitment and
Promotion (part 2)
As long as:
• They are ‘as qualified as’ those others,
and
• The Employer does not have a policy of treating
such people more favourably
CM Murray LLP: Specialists in Employment and Partnership Law
“As qualified as”
s159(4)(a)
“Equal Merit”
Qualifications
vs
Experience
CM Murray LLP: Specialists in Employment and Partnership Law
A few tips for employers:
• Positive action is voluntary
• s159 decisions should always be proportionate:
consider where possible other ways of
addressing under-representation of particular
groups
• Criteria for any role should remain objective and
the reasons for any decision should be
documented carefully
• See ‘Quick Start Guide’ for more explanation
(GEO publication)
CM Murray LLP: Specialists in Employment and Partnership Law
The Bribery Act 2010
_________________
Anna Birtwistle
CM Murray LLP
CM Murray LLP: Specialists in Employment and Partnership Law
CM Murray LLP: Specialists in Employment and Partnership Law
The Bribery Act 2010
• (Finally!) July 2011
• Issues for law firms:
–
–
–
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Hospitality/gifts
Referrals
Instructing overseas counsel
Setting up abroad
• Guidance:
–
–
–
–
Ministry of Justice
Joint Prosecution
Law Society
Transparency International
CM Murray LLP: Specialists in Employment and Partnership Law
Offences
General Offences:
1.
Paying bribes (“Active
bribery”) (s.1)
2.
Receiving bribes
(“Passive bribery”) (s.2)
Specific Offences:
3.
Bribing a foreign public
official (s.6)
4.
Failure by a commercial
organisation to prevent
bribery: the “Corporate
offence” (s.7)
CM Murray LLP: Specialists in Employment and Partnership Law
The Corporate Offence
• A “commercial organisation”
will commit bribery if an
“associated person” bribes
another person for that
organisation’s benefit.
• Strict liability
“Commercial organisations”:
partnerships and LLPs, as
well UK companies and
overseas companies
carrying on business in the
UK
“Associated person”:
employees, agents,
subsidiaries, intermediaries,
joint venture partners
• Territorial reach
• Defence: “Adequate
procedures”
CM Murray LLP: Specialists in Employment and Partnership Law
Adequate Procedures
Defence
Government (MoJ) guidance, six principles:
1.
2.
3.
4.
Risk Assessment
Top level commitment
Due diligence
Clear, Practical and Accessible Policies and
Procedures
5. Effective implementation
6. Monitoring and review
CM Murray LLP: Specialists in Employment and Partnership Law
Corporate hospitality
• An established part of
doing business
• Lavish vs reasonable
and proportionate
• Motivation is key
CM Murray LLP: Specialists in Employment and Partnership Law
Penalties/Other Consequences
Of Non-Compliance
•
•
•
•
SFO
Criminal sanctions (s.1, 2 & 6)
Unlimited fines
Debarment from tendering for public-sector
contracts
• Confiscation Orders (Proceeds of Crime Act)
• Adverse publicity
• Reputational damage
CM Murray LLP: Specialists in Employment and Partnership Law
Practical Tips
•
Policies
– Anti-bribery, corporate hospitality and gifts, whistleblowing procedures
•
Training relevant staff
– Top down commitment: Management board, Practice Managers and Partners
•
Assessment of risk
– Which countries are the firm operating in and in which sectors?
•
Due diligence
– Suppliers, agents, contractors
•
Investigation procedures and disciplinary sanctions
•
Appointing individual responsible for bribery issues
CM Murray LLP: Specialists in Employment and Partnership Law
The CM Murray LLP
Team
Clare Murray
Bettina Bender
Charis Damiano
Managing
Partner
Partner
Consultant
Susanne Foster
Esther Martin
Anna Birtwistle
Senior Associate
Associate
Associate
CM Murray LLP: Specialists in Employment and Partnership Law
CM Murray LLP
37th Floor
One Canada Square
Canary Wharf
London E14 5AA
+44 (0)20 7718 0090
www.cm-murray.com
[email protected]
Twitter: @CMMurrayLLP
CM Murray LLP: Specialists in Employment and Partnership Law