The Agency Workers Regulations 2010 An Update 09.2012

The Agency Workers
Regulations 2010

Thursday 27 September 2012

©Langleys Solicitors LLP 2012

Introduction
• Agency Workers Regulations 2010
– What are the Regulations and who do they apply
to?
– The TWA – “12 week rights”
– The Hirer – “Day One Rights”
– How to deal with the effects of the Regulations


What are the Agency Workers
Regulations 2010?
• The Agency Workers Regulations 2010 (AWR
2010) give Agency Workers (AWs) the right to
equal treatment compared with employees
recruited direct by the Hirer (Comparable Direct
Recruits (“CDRs”) in respect of: -
– Pay
– Duration of working time
– Night work
– Rest periods
– Annual leave
– Access to facilities and employment
vacancies


Who do the Regulations apply
to?
• Agency Workers
who find work
through a Temporary
Work Agency (TWA)
whose function is to
find Agency Workers
for a Hirer


Definitions – Temporary Work
Agency
• Regulation 4(1):
“A person engaged in the economic activity, public or
private, whether or not operating for profit, and whether
or not carrying on such activity in conjunction with
others, of -
(a) supplying individuals to work temporarily for and
under the supervision and direction of hirers; or
(b) paying for, or receiving or forwarding payment for, the
services of individuals who are supplied work
temporarily for an under the supervision and direction
of hirers.”


Definition - Agency Worker
• Regulation 3(1): -
– A worker who is supplied by a
TWA to work temporarily for and
under the supervision and
direction of a Hirer; and
– Has a contract with the TWA
which is either:
• A contract of employment with
the TWA
• Any other contract to perform
work and services personally

Definition – Hirer
• Regulation 2: -
– “a person engaged in economic activity, public
or private, whether or not operating for profit,
to whom individuals are supplied, to work
temporarily for and under the supervision and
direction of that person”.


Do the Regulations apply to
your business?
- Businesses who take Day Work provision
from a TWA.

- Not package work: this is where the Hirer
pays an organisation to undertake a project
on their behalf. These workers are not Agency
Workers.


What obligations do the
Regulations set out?
• Two sets of obligations: -
1. “Day One Rights” – responsibility of the Hirer
2. “12 week rights” – responsibility of the TWA


“12 week rights” – the qualifying
period
• AWs are entitled to equal treatment with CDRs if they
perform the same role with the same Hirer for 12
continuous calendar weeks (“the qualifying period”)
(Regulation 7(2))
• 12 weeks do not have to be complete weeks of work – at
some point during week AW engaged on an assignment
(Regulation 7(4))
• After the qualifying period the CDR’s terms and
conditions become the minimum terms and conditions an
AW can receive


Breaks in continuity of the 12
week qualifying period
• AW starts a new assignment with a new hirer
• AW - new assignment with same TWA that is
“substantially different” from previous
assignment
• Break of 6 calendar weeks or more
• Certain absences e.g. a break of up to 28
weeks due to sickness or injury incapability
will not break continuity
• Absences due to pregnancy, childbirth or
maternity or leave relating to these – 12
weeks unaffected


“Day One Rights” – the Hirer
• Two main categories of “Day One
Rights”:
– Access to collective facilities and
amenities: equal right to facilities as
CDRs
– Access to employment vacancies:
Hirer required to tell AWs about any
relevant vacancies
– “Day One Rights” apply from the
moment the AW is on the Hirer’s
premises
– The Hirer’s responsibility

“12 week rights” – relevance
to hirers
• The Hirer also has a responsibility to provide information
to allow the TWA to provide equal treatment as to the 12
week rights

• Breach of this by the Hirer (e.g. late, incorrect or failure
to provide information) – Hirer held responsible


The Uncertain Respondent
• Employee becomes aware that their rights under the
Regulations have been breached - unsure as to who is
responsible. Is the default due to failure to provide
information (Hirer) or failure to apply information (TWA)?

• The employee would be well advised to pursue both the
Hirer and the TWA.

• The ET would order a pre-hearing review to establish
who is the correct respondent.


How can TWAs reassure their
Hirer clients?
• Managed Service Contracts

• The “Swedish Derogation”

• Rotation of Employees

• An Indemnity


Managed Service Contracts
• Option is only available to organisations that
have the necessary expertise and structures in
place.
• The Hirer would specify a task they would like an
organisation to undertake and would allow the
organisation to provide and manage workers
through it. The workers may not fall under the
Regulations.


The Swedish Derogation
Member States may…
provide that an exemption may be
made to the principle [of equal
treatment] where temporary agency
workers who have a permanent
contract of employment with a TWA
continue to be paid in the time
between assignments" (Article 5.2).


The Swedish Derogation

• Regulations 10 and 11 reflect this.
The AW will need to enter into a “Pay
Between Assignments Contract”
• Advantage: the obligation to ensure
equality of pay is removed (but only
pay)
• Disadvantage: paying workers who
are not working – who pays. TUPE!


Rotation of employees – anti-
avoidance provisions
• Problem – Hirers are not allowed to simply rotate
AWs to avoid them accruing 12 weeks of
continuous service
• Anti-avoidance provisions (Regulation 9)
• Can rotate AWs – genuine reason which is not
avoidance
• Breach – AW treated as if accrued 12 week
rights. Potential £5,000 fine for responsible party


An Indemnity
• Best way for TWAs to reassure their Hirer clients
that the Regulations will not trouble them

• TWA indemnifies Hirer against any breach of
Regulations – provision in contract

• Indemnity qualified – Hirer is responsible for
“Day One Rights” and provision of information


Pregnant Women & Nursing
Mothers

• Paid time off for ante-natal medical
appointments and classes.
• Alternative work – no less favourable; or
• Full pay for the remainder of the assignment


Enforcement
• Right not to be dismissed on prescribed grounds
• The right not to be subjected to a detriment on prescribed
grounds
• Equal treatment rights infringed
• Rights of access to employment or facilities have been
breached
• Providing pay between assignments has been breached
• Agency or hirer has unreasonably refused a woman paid time
off for ante-natal care
• Agency or hirer has failed to pay the agency worker
remuneration where the supply of her work to a hirer is ended
on maternity grounds

Information Requests
• Similar to Fixed Term workers
• Make a written request – informally
• Formal Structure
• Adverse inferences from failure to respond


Remedies
• Week 12 Rights
– TWA responsible for any breaches of rights in relation to an
agency worker's basic working and employment conditions to
the extent that it is responsible for the infringement
– Defence - took "reasonable steps" to obtain relevant
information from the hirer and acted "reasonably" in
determining the agency worker's basic working and
employment conditions after the qualifying period and for the
remainder of the assignment.
– Then hirer will be fully responsible for any breach.
– No equivalent defence for hirers


Remedies
• Week 12 Rights
– Hirer responsible for any breach to the extent that it is
responsible for the infringement
– Multiple TWAs involved in proceedings
– TWAs and hirers not jointly and severally liable for
breaches
– Exchange information in a timely manner.


Reasonable Steps Defence
Drafting errors in relation to the "reasonable
steps" defence were highlighted by the Joint
Committee on Statutory Instruments in March
2010 and were corrected by the Agency
Workers (Amendment) Regulations 2011.


Remedies

• Day 1 Rights
– The hirer will be solely responsible for any breach
of regulations access to collective facilities and
amenities and access to employment vacancies


Contracting Out
– Notably, there has not been an amendment to section
203(2)(f) of the ERA 1996 so as to include the
Regulations, and neither have the provisions of
section 203 been replicated in the Regulations
themselves, so:
• no effective mechanism for waiver of claims by means of a
compromise agreement.
• Possible to settle claims pursuant to an Acas-conciliated
agreement.


Action points - TWA
• See handout for TWAs and Hirers


Any Questions?


Contact Details
Kate Hindmarch Phone No: 01522 508815
Email: kate.hindmarch@langleys.com

Kelly Taylor Phone No: 01522 508785
Email: kelly.taylor@langleys.com

Danielle Lister Phone No: 01522 508715
Email: danielle.lister@langleys.com

Rachael Keightley Phone No: 01522 508817
Email: rachael.keightley@langleys.com

Website: www.langleys.com
Twitter: @langleyslaw


The Agency Workers Regulations 2010 An Update 09.2012

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