The final Agency Workers Regulations, implementing the European Temporary Agency Work Directive (2008/104/EC), have been laid before Parliament and will come into force on 1 October 2011.
Professional Support Lawyer Elizabeth Stevens comments:
Back in October 2009 we reported the Government’s latest consultation on the draft Agency Workers Regulations (see our previous briefing). The Regulations have been finalised and laid before Parliament, and the Government’s response to the consultation has been published. The long lead-in time before the Regulations take effect is intended to give agencies, hirers and agency workers time to prepare and plan ahead.
What do the Regulations mean?
The Regulations will broadly mean that agency workers are entitled to the same pay, holidays and other basic working conditions as permanent employees, after 12 weeks in a given job. They will also have the right to access certain facilities from the start of any assignment with an employer, for example access to a canteen, transport services or childcare facilities.
The qualifying period of 12 weeks will only restart if the worker is placed on a substantively different assignment, or if there is a break of more than six weeks between assignments in the same role.
What has changed?
The final Regulations have not changed significantly from the previous draft version. The definition of what amounts to ‘pay’ for the purpose of equal treatment has been broadened to include performance-related bonuses as well as overtime payments, shift allowances and unsocial hours premiums. Vouchers or stamps with a monetary value, such as luncheon vouchers will also be included. The concept of ‘pay’ for these purposes still excludes those aspects of remuneration that reflect a permanent employment relationship, such as pension contributions, profit-related pay and occupational sick pay.
The Regulations also now contain new anti-avoidance provisions, giving agency workers the right to bring a claim if assignments are structured in a way designed to avoid the scope of the Regulations. This would include, for example, an arrangement whereby the hirer operates a rotation system with a series of 11-week assignments in ‘substantively different’ roles. The sanction for a breach of this provision will be up to £5,000 per employee. As a further deterrent, in low-value cases there will be a minimum award of two weeks’ pay.
Who is liable?
The agency will be primarily responsible for any breach of the right to equal treatment under the Regulations. It will have a defence if it can demonstrate it took “reasonable steps” to obtain the necessary information from the hirer, relating to employment and working conditions, in order to provide the agency staff with equality of treatment. The hiring employer will therefore have a duty to provide accurate information to the agency, in order to avoid liability. It will also be directly liable for a breach of the right to access collective facilities.
The Government has promised further guidance on the Regulations before they come into force. Many employers will have to reconsider their current use of agency workers, and agencies will have to make significant changes to the way in which they supply agency staff.