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The Agency Workers Regulations – preventing a two-tier workforce?
Article Type: Employment law outlook From: Human Resource Management International Digest, Volume 19, Issue 7
The Agency Workers Regulations 2010 (“the AWR”), in force from 1 October 2011, give effect to the European Temporary Agency Workers Directive. This Directive had stalled in the EU Council, but following a deal where the UK agreed to support it, in return for the retention of the 48-hour Working Time opt-out, the deadlock was broken. The AWR apply to agency workers, often known as “temps”, who are assigned to do temporary work (for hirers) through temporary work agencies, and employment tribunals will have the job of deciding whether a particular arrangement falls within the scope of the AWR. The Government has recently published final guidance about the AWR, which is available at: www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf
The main effect of the AWR is to give agency workers the right to the same basic employment and working conditions, as if they had been recruited directly, if and when they complete a 12-week qualifying period in the same role, to limit the ability of an employer to have what amounts to a “two tier workforce”. The 12 week qualifying period is a result of an agreement reached in the UK between the TUC and the CBI. The change is not retrospective, so where an employer already has agency workers in post, their rights to equivalent terms and conditions will not kick in until 12 weeks after the 1 October.
The equivalent rights concerned will be to key elements of pay, (such as basic pay, and overtime, or bonuses linked to individual performance, but not occupational sick pay, pension or family benefits such as maternity leave); the duration of working time, night work, rest periods and breaks, paid annual leave and paid time off for antenatal appointments.
It is anticipated that agencies will attempt to pass over the increased cost arising from the agency worker’s rights to equal pay and benefits to their clients, the hiring organisations. Now is the time to be reviewing terms and conditions between your organisation and the temporary work agencies you use, to ensure that this increase in cost is kept to a minimum, and that any indemnity protection you require can be built in to contracts.
It won’t be a simple matter for employers to avoid the provisions of the AWR. There are anti-avoidance provisions built into the legislation, specifically to prevent employers using rolling periods of assignment of 11 or 12 weeks with six week breaks built in to avoid workers accruing rights under the AWR.
There are however some working arrangements which will fall outside the scope of the rules. These include situations where individuals providing services are in business on their own account; in-house staffing banks; managed service contracts (where workers are genuinely not supervised or directed by the hirer, often seen in e.g. catering, IT services or cleaning contracts) and finally, where the worker has a contract of employment with the temporary work agency which has basic rights (as specified in the AWR) in it, which include the right to a minimum level of pay between assignments. This last situation is known as the “Swedish derogation”, as it was negotiated into the Directive by Sweden, and avoids the need for pay parity. The other equivalent rights guaranteed by the AWR would still need to be provided however.
From the first day of an agency assignment, the AWR also provide that an agency worker has the right to be informed of any relevant vacant posts with the hirer. It is enough for the hirer to make general announcements about this, such as posting jobs on an intranet.
Agency workers will also be entitled from day one to access the same facilities and amenities as are made available to permanent staff doing similar work. These may include access to a canteen, car parking or childcare facilities. This right does not include benefits like car allowance or season ticket loans.
Sarah James Associate Solicitor at Dickson Dees LLP, Newcastle upon Tyne, UK.
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