The long awaited final guidance on the Agency Workers Regulations (‘the Regulations’) has now been published by the Department for Business, Innovation and Skills (BIS). Forget the airport paperback; this will be essential summer reading for all those involved in the hiring and provision of agency staff, as the Regulations come into force on 1 October 2011. Julian Hoskins looks at the detail.
The Regulations in brief
By way of a brief overview, the right for agency workers under the Regulations is to be treated equally to employees recruited directly by the hirer.
Importantly, however, this right is limited to equal treatment only in relation to specific matters. The Regulations only require that agency workers have
- access to the same facilities as employees
- access to information about job vacancies; and
- equal ‘basic working and employment conditions’, which, in turn are limited to
- duration of working time
- length of night work
- rest periods
- rest breaks
- annual leave
Some rights only apply after the agency worker has been engaged in the same role for 12 weeks, and others apply from ‘day one’ of an assignment.
Day one rights for all agency workers
The Regulations give agency workers the right to access to ‘collective facilities and amenities’, from the start of their assignment. These include, for example, canteens, workplace crèches, parking facilities etc.
A failure to provide equal access to facilities may be objectively justified and the Guidance expands on this by suggesting that hirers should ask themselves: “is there a good reason for treating the agency worker less favourably?” Note, however, that a more rigorous approach may be taken by an employment tribunal.
A further ‘day one’ right is for the agency worker to be told of any relevant vacancies in the hiring organisation during their assignment. The Regulations state that agency workers may be informed of vacancies by ‘general announcement’, and the Guidance adds that employers have freedom to choose how to advertise vacancies, provided the agency worker knows where and how to access that information.
Helpfully, the Guidance confirms that hirers are not constrained regarding any requirements for qualifications or experience that, in practice, only permanent staff may have (for example, employer-specific experience); and neither are hirers constrained in ‘how they treat applications’ from temporary workers.
The Guidance also sets out that the right will not apply in the context of a genuine ‘headcount freeze’ where posts are ring fenced for redeployment purposes, or internal moves which are a matter of restructuring and redeploying existing internal staff in order to prevent a redundancy situation (because these are not ‘vacancies’ in the traditional sense).
Rights after 12 weeks
After 12 weeks with the same hirer an agency worker has the right to equal treatment with regard to ‘basic working and employment conditions’ (as defined above).
- this obligation arises after 12 weeks in the same role, regardless of whether the agency worker has been supplied by different agencies; and
- it is not retrospective, i.e. for agency workers already on assignment, the 12 week qualifying period will start from 1 October 2011.
One thorny issue that will, no doubt, be thrown up by the Regulations is what constitutes ‘pay’ for purposes of equal treatment. Straightforward examples of ‘pay’ within the scope of the Regulations are basic pay, and additional payments such as overtime, shift allowances etc.
Whether bonuses are included may be more contentious but the basic premise is that a bonus payment should only fall within the scope of the Regulations if it is for ‘work done’ which is linked to the contribution of the individual. For example, an annual bonus based on the performance of the hiring organisation generally and allocated regardless of individual performance would not be covered by the Regulations; in contrast, a bonus paid on the basis of, say, the speed at which work is turned around, would be covered.
Pay excludes occupational sick pay, occupational pensions, occupational maternity, paternity or adoption pay, statutory or contractual redundancy pay, notice pay, the majority of benefits in kind, or payments that require an eligibility period of employment if not met by the agency worker and payment for time off for trade union duties. Discretionary, non-contractual bonus payments which are not paid with such regularity that they have become custom and practice are also excluded from the scope of the Regulations.
In respect of working time and holiday entitlements, the guidance suggests that hirers may wish to simplify the administration of any entitlement (above the statutory minimum) by making a one off payment at the end of the assignment or ‘rolling-up’ holiday pay into the worker’s hourly rate. Existing law on ensuring that workers actually take time off still applies.
Information requests and liability
Temporary workers have the right to request information from their agency or the hirer in order to ascertain whether their rights under the Regulations have been infringed. An Employment Tribunal may draw an adverse inference from an evasive or inadequate response to a request for information.
The hirer is solely responsible for breaches of ‘day one’ rights.
For failure to provide equal ‘basic working conditions’, liability may rest with either the hirer or the agency, to the extent of their respective responsibility for the failure. For example, if the hirer failed to provide information about basic working conditions to the agency, then any liability could rest solely with the hirer.
A declaration of rights and / or compensation is available for workers whose rights have been infringed. Compensation may be calculated on the basis of any financial loss suffered by a worker because of a breach of the Regulations, and / or an ‘appropriate level’ of compensation may be awarded if, for example, the worker has been denied access to a facility, such as an employee crèche.
There is a minimum award of two weeks pay, and no maximum award.