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The Agency Workers Regulations 2010

The Agency Workers Regulations 2010 (“the Regulations”) will finally come into force on 1 October 2011.  British business has had plenty of time to prepare but there is still a significant degree of concern among business leaders about the impact that the Regulations will have and the most recent guidance from BIS does little to answer important questions in respect of the scope of the Regulations.

What Rights will the New Regulations Confer?

Immediately from 1 October 2011
An Agency Worker will have the right to be told of any relevant vacancies that the hirer may have from the very start of their assignment to be sure that they have the same opportunities to apply for vacancies as permanent employees.  If an agency worker does not have access to the normal lines of communication within a hirer’s establishment (email or intranet access for example) the hirer will be expected to provide a note of any available opportunities in an area that is easily accessible to agency workers such as a notice board in the cafeteria.

In addition, an agency worker will have the right to be treated no less favourably in respect of their access to collective facilities and amenities within the hirer’s establishment from the very beginning of their assignment.  These facilities or amenities will include the canteen, child care facilities and the provision of transport services.

After 12 weeks 
An agency worker, who has worked for the same hirer, in the same role, for a continuous period of twelve weeks, will be entitled to the same basic working and normal employment conditions as any other employee who has been recruited directly by the hirer for doing the same job.  The Regulations define “basic working and employment conditions” as including pay; duration of working time; length of night work, rest periods, rest breaks and annual leave. 

To be able to bring a claim for failure to ensure parity, an agency worker will need to be able to show that he or she is not receiving the same conditions as a directly employed person.  If there is no permanent employee contract with which the agency worker can make a comparison, then it may be possible for him or her to use what is known as a hypothetical comparator instead.  Either way, the claim will only be successful if the agency worker can identify an individual, on a permanent contract with the hirer doing the same job, who is working under better terms and conditions that those specified in the agency worker’s contract.

Anti-avoidance Provisions
The Regulations have come equipped with a provision designed to stop hirers or agencies simply moving workers between assignments in order to stop them completing the twelve weeks continuous service in the same assignment needed to gain the right to the same terms and conditions. 

Regulation 9 sets out a non-exhaustive list of factors which can be taken into account by Tribunal when deciding whether or not there has been a restructure of assignments to avoid the rights granted under the Regulations.  These include the length of assignments; the number of assignments; the number of times an agency worker has worked in a new role with the hirer and the period of any break between assignments with the hirer.

Who will be Subject to the Regulations?
The Regulations will apply to agency workers who seek temporary work through a temporary work agency.  This means that the Regulations will not apply to genuinely self-employed workers or those employed on a managed service contract.  The Regulations will not be applied retrospectively though and so the first claims will be based on failures to adapt to the new rules from 1 October onward.  However, the scope of Regulations has sparked furious debate and if you are in any doubt as to whether or not the Regulations apply to your circumstances you should seek legal advice.

Conclusion
When the Regulations were first considered in 2008, there were an estimated 1.4 million agency workers operating in the UK and so it is beyond doubt that the Regulations will have far reaching effects.  With much debate still set around the scope of the Regulations we can be sure that Tribunals across the country will be on high alert for claims.

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Published: Tuesday 13th September 2011
Categorised: Employment

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