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Agency Workers: 2010 Regulations and Beyond

PS
BY Paman Singh
Employment Law & HR

The Agency Workers Regulations have been in force for almost a decade but uncertainty still exists around them. This month, we have decided to set out some responses to commonly asked questions that our team receive.

What are the Agency Worker Regulations?

The Agency Worker Regulations 2010 provide rights for agency workers, including:

  • The right to the same pay and other basic working conditions as equivalent permanent staff after a 12-week qualifying period.
  • Access to collective facilities and to information about employment vacancies from the beginning of their assignment.

What rights are agency workers entitled to after 12 weeks?

The basic working and employment conditions that an agency worker becomes entitled to after 12 weeks are the relevant terms and conditions that are ordinarily included in the contracts of the hirer. The fact that they must be ordinarily included means that one-off arrangements should not be used as a point of comparison.

The relevant terms and conditions will vary depending on whether the agency worker would have been recruited as an employee or a worker. They are the terms and conditions which relate to pay, duration of working time, night work, rest periods, rest breaks and annual leave.

What do we mean by “pay”?

The term pay includes basic pay, overtime pay, shift or unsocial hours allowances, bonuses or commission payments which are directly attributable to the amount or quality of the work done and vouchers or stamps with a monetary value. However, it does not include terms and conditions such as occupational sick pay, occupational maternity, paternity or adoption pay, redundancy pay or notice pay.

Does an agency worker automatically qualify for these after 12 weeks?

The agency worker will only qualify for these once they have been in the same role with the same hirer for 12 continuous calendar weeks.

Where an agency worker stops working for one hirer and beings working for another, continuity will be broken and the qualifying clock will re-set. However, there are some scenarios in which the qualifying clock will merely be paused. Where there is a break for any reason and this is not for more than six calendar weeks and the agency worker returns to the same role with the same hirer, any work done before this break will count towards the 12-week qualifying period.

Are there any exceptions?

At the moment, the Swedish derogation provides an exemption from the right to equal treatment with regards to pay where the agency worker has a permanent contract of employment from the Temporary Work Agency (TWA) and receives payment between assignments when they are not working for a hirer. 

It is worth noting that an agency worker in this situation would still be entitled to equal treatment in relation to the duration of working time, night work and rest periods, rest breaks and any unpaid annual leave.

What does the future hold for agency workers?

In December of last year, the government published the Good Work Plan in response to the Taylor Review on modern working practices. From 6 April 2020, all employment businesses will have to provide agency work-seekers with a Key Facts Page (more on this below). Additionally, the “Swedish derogation” will be abolished so that all agency workers will have a right to pay parity after 12 weeks, regardless of whether they have a contractual provision entitling them to pay between assignments.

The government has also stated its intention to expand the remit of the Employment Agency Standards Inspectorate (EASI) to cover umbrella companies as well. This follows the finding by the Taylor Review that umbrella companies sometimes play a questionable role in relation to agency workers, creating uncertainty over who is responsible for employing or paying the workers. However, there is no date for when this will take effect as of yet.

What will a Key Facts Page include?

A Key Facts Page will have to be provided to agency workers before agreeing the terms for their work. This is intended to improve the transparency of information provided to agency workers and will have to include information such as any deductions or fees, the minimum expected rate of pay and who will pay them.

Further guidance on drafting and providing these documents will be made available by the Department for Business, Energy and Industrial Strategy and the EASI before this requirement comes into force.

Anything else you should know about?

The Good Work Plan has implemented a number of other changes that are not specific to agency workers but may still affect them such as:

  • From 6 April 2020 the right to a written statement of terms will be extended to all workers and will also need to be provided on day one of employment.
  • It is intended that all workers will have the right to request a ‘more stable contract’ after 26 weeks of service, although an implementation date has not yet been confirmed.
  • From 6 April 2020 there will be an increase of the pay reference period for calculating holiday pay for workers without normal hours from 12 to 52 weeks.
  • From 6 April 2020 the period required to break continuity of employment will be extended from 1 week to 4 weeks.

If you have any questions about how any of these issues or changes might affect your business, do not hesitate to get in touch with your dedicated employment solicitor today.

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