Is your business prepared for the introduction of the Agency Workers Directive?
The Agency Workers Regulations 2010 came into force on October 1. They implement the EC Agency Workers Directive, together with draft consequential amendments to the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
The key provisions of the act are:
After a 12-week “qualifying period” in the same role with the same hirer (regulation 7) the agency workers will be entitled to equal treatment in terms of key elements of pay, working hours and holidays as permanent staff in the same job. Key elements of pay include basic pay (the hourly rate or annual salary for the position); overtime; shift and unsociable hours allowances; bonuses or commission and paid annual leave in excess of the statutory minimum of 5.6 weeks. Occupational sick pay and pension are not included (Regulation 5 and 6).
The 12-week “qualifying period” must be continuous (ie without breaks) and the worker must be in the same role with the same hirer for the twelve week period. Continuity of this 12-week period will be broken if the worker, while assigned to the hirer, is given a new role comprising of substantively different duties or work. An agency worker will be considered to be in the same role over the relevant period of time unless:
• He or she starts a new role with the same hirer, whether supplied by the agency or not the work or duties that make up the whole or main part of that role are substantively different from those that make up the new role
• The agency has informed the worker in writing of the type of work he or she will be required to do in the new role
Under regulation 17 the worker has a right not to be unfairly dismissed, or subjected to a detriment for a reason connected to the regulations. Where the worker considers their rights have been breached or they have suffered a detriment as a result of asserting their rights then they may bring a claim in the employment tribunal. The claim must be made within three months of the date of the alleged breach or detriment suffered. The tribunal can award compensation for injury to feelings in cases of detriment. Agency workers are now entitled from the start of their assignment to:
• Details of vacancies the hirer may have thereby giving the agency worker the same opportunity as other workers to find permanent employment within the company
• Use of on-site facilities, for example child care
• The right for new and expectant mothers to reasonable time off to attend ante-natal appointments and reasonable adjustments to working conditions and working hours
If you business is not prepared then you need to take action now. If in doubt then we strongly recommend you seek independent legal advice.
• Gillian Markland is head of employment law at Ingrams Solicitors.