New agency worker rules delayed until October 2011
From 1 October 2011, agency workers will have the same rights as permanent staff, including pay, holidays and other conditions of employment, after 12 calendar weeks on an assignment.
This qualifying period does not have to be made up of continuous weeks – only a break of six weeks or more will mean the 12 weeks is recalculated all over again. And from the first day they set foot in the door, they will have the same access to collective facilities and amenities (e.g. canteens) as permanent employees. They will also have to be given the same opportunities to apply for permanent jobs with the client employer (as opposed to their agency), be informed of vacancies and have access to announcements.
The Agency Workers Regulations 20101 were laid before Parliament on 21 January 2010 and implemented in the UK the Agency Workers Directive 20082. However, there is no proposal to confer employment status on agency workers and the actual implementation amounts to a delay by the government in recognition that hirers and agencies need more time to prepare. The deadline for implementation is 5 December 2011, so this was leaving it as late as possible.
An agreement between the TUC and the CBI, which was reached on 20 May 2008, sets out how fairer treatment for agency workers in the UK should be promoted. Key issues included that after 12 weeks in a given job an agency worker would have an entitlement to equal treatment (at least the basic working and employment conditions that would apply to the worker concerned if they had been recruited directly by that undertaking to occupy the same job). It was agreed that occupational social security schemes would be outside the equal treatment provisions. This agreement helped break the deadlock on discussions in the EU by providing a basis on which the UK and other member states could agree the directive.
Trevor Bettany, a partner at law firm Speechly Bircham observes:
‘In addition to the increased cost of providing equal pay to agency workers, agencies and hirers will have to work out how to comply with the requirements of the regulations as efficiently as possible in order to minimise compliance costs. They will also consider how and whether to try to structure arrangements outside the scope of the regulations or to apportion liabilities between them.’
He goes on to summarise the practical impact of the regulations on agencies and hirers:
‘Pay means basic pay plus other contractual entitlements directly linked to the work undertaken by the agency worker whilst on assignment. There may be some scope to avoid paying bonuses structured to reflect the performance of the organisation, linked to appraisals designed for long term management, motivation and performance. However, pay will not include contractual sick pay, pension, maternity, paternity or adoption pay or paid time off.
‘It is significant that the agency will be responsible for breach of the right to equal treatment but will have a defence if it has taken “reasonable steps” to obtain the necessary information from the hirer and acted “reasonably” in determining the agency worker’s basic conditions. However, the hirer can also be named in the proceedings and each of the agency and the hirer can be liable to the extent it is responsible for the breach. For tactical reasons, the agency worker is likely to bring claims against both hirer and the agency, each of which will therefore face the risk of time, expense and liability from claims.’
The TUC sets out its case for fairer treatment of agency workers in its response to the consultation issued by the government from 18 to 11 December 2009 3, with Brendan Barber citing a poll from earlier that year highlighting the plight of agency workers:
‘It showed that some rogue employers are using the lack of employment rights and insecurity of agency workers to treat agency temps badly – to pay them less, to give them less holiday pay, to get out of paying them redundancy or maternity pay, and to neglect their training and development. Agency workers are even more in need of protection during a recession. Vulnerable workers are always the first to suffer when times are hard.’
This is something the CBI does not agree with: ‘Our members strongly reject the notion that agency workers are uniformly vulnerable, while accepting that some may be ”vulnerable”, just as some employees are. Vulnerability is brought about as a result of two factors: knowledge of existing employment rights and the ability to access them. Agency workers are covered by many of the same rights as employees – such as the National Minimum Wage and the Working Time Regulations – and are therefore neither more nor less vulnerable than employees by virtue of their employment status.’4
[1] www.opsi.gov.uk/si/si2010/uksi_20100093_en_1
[2] The consultation document can be viewed here
[3] www.tuc.org.uk/law/tuc-17381-f0.cfm
[4] The CBI response to the BIS consultation on the Agency Workers Directive can be viewed here
