Equal rights for agency workers

01/01/2010

By Nick Hobden, Partner and Head of Employment.

The issue of whether agency workers should be given the same rights as permanent members of staff is one that seems to have been rumbling on for years, without any prospect of resolution.

But following some high level negotiations between members of the EU, agreement has been reached about the nature of the protection to be afforded to such workers. As a result, on 15 October 2009 the Government published the draft Agency Workers Regulations 2010 ("the Regulations"), which are intended to provide Britain's 1.3 million agency workers with the right to the same basic conditions of employment as permanent staff after 12 weeks of employment.

Equality of treatment

So how will this right to "equal treatment" manifest itself? The basic test in the draft Regulations for establishing "equal treatment" as between agency workers and permanent staff is that an agency worker should be treated as if he or she had been recruited directly by the hirer to the same or a similar job. However, the devil is in the detail. "Equal treatment" only applies to "pay" and working time arrangements. These terms must either be formally set out in a contractual agreement, or have become established in the workplace (as a matter of custom and practice). It does not apply to terms which do not fall within this definition.

"Pay" includes basic pay, payment for overtime, shift allowances, unsocial hours premiums and some commission and bonus payments. It will not include occupational sick pay, maternity pay, redundancy payments or company benefits such as share schemes or company car allowances. Agency workers would also not be entitled to join company pension schemes.

Qualification period

Whilst the general right to equal treatment will kick in after 12 weeks' service, once again it is worth lingering on a few points that arise here.

The amount of hours or number of days worked during the 12-week qualification period is irrelevant. Furthermore, the 12-week period will only re-start if (i) an agency worker starts a “substantively different” role with the same hirer or (ii) the agency worker has a break from working with that hirer for at least 6 weeks. Minor changes in responsibilities or job title would not therefore break continuity, nor would breaks between assignments lasting fewer than 6 weeks. The Government has implemented these measures in order to minimise the risk of employers seeking to find ingenious ways of getting around the new laws.

Pregnant workers

It is worth noting that the draft Regulations provide specific protection for pregnant agency workers. Hirers will need to make adjustments to working conditions or working hours to protect pregnant workers from identified risks. Where this is not reasonable, it will fall to the agency to offer the worker suitable alternative work (or payment in lieu of work) for the period that she is unable to work on the assignment due to a health and safety risk.

Pregnant agency workers will also be entitled to a reasonable amount of paid time off during working hours to attend ante-natal appointments.

Liability

Of course the issue that is likely to concern employers the most is the question of who bears the risk, should an agency worker allege that their rights have been breached. Well the primary liability for providing equality of treatment will lie with the employment agency. However in certain circumstances it may be possible for the agency to mount a defence that results in liabilities passing to the hirer.

As is commonly the case with employment-related claims, where they believe that their rights have been breached, agency workers will be entitled to bring a complaint before the Employment Tribunal within three months of the date of the act complained of.

A call to action

Although the Regulations are not due to come into force until 1 October 2011, employers who currently make use of temporary agency workers and agencies should familiarise themselves with the draft Regulations and review their usage of agency workers and their contractual terms and conditions.

As ever, the Employment team here at Thomson Snell & Passmore is ready to answer any further questions that you may have on this issue and help you to prepare for this significant change in the law.