THE AGENCY WORKERS REGULATIONS 2010
The Agency Workers Regulations 2010 are due to come into force on 1 October 2011.
It a detailed piece, but essential for your business. Please read on....
Who do they apply to?
The Regulations will apply to “agency workers” who find temporary work with a “hirer” through a “temporary work agency” (definitions of these terms are set out at the end of this document). Particular points to note on the scope of the Regulations include:
· It is intended that workers providing services though an “umbrella” company will be covered by the Regulations, but those who are genuinely in business on their own account will not.
· Managed service contracts (where a company provides a specific service to a customer, such as catering or cleaning) are not intended to be covered by the Regulations, provided the managed service contractor has sufficient genuine control over the provision of the service.
· In-house temporary staffing banks may be covered by the Regulations, depending on the reality of the employment and organisational arrangements.
However, the final decision as to applicability of the Regulations will rest with an employment tribunal to decide on the individual facts.
The right to equal treatment:
The Regulations will entitle the agency worker, once the 12 week qualifying period has been met, to the same basic working and employment conditions as he would have been entitled to, had he been recruited by the hirer for the same role.
Which terms and conditions are covered?
The agency worker is not entitled to equal treatment in respect of all terms and conditions, only "basic working and employment conditions", including:
· pay;
· duration of working time;
· length of night work;
· rest periods;
· rest breaks; and
· annual leave.
Pay includes "any sums payable to a worker of the hirer in connection with the worker's employment”, including:
· holiday pay (including time off for public and bank holidays);
· overtime;
· shift allowances;
· unsocial hours premium or bonus;
· additional payment for difficult and/or dangerous duties;
· vouchers or stamps with a monetary value (but which are not provided through salary sacrifice schemes), such as luncheon and transport vouchers; and
· bonuses or commission which are clearly linked to the amount and/or quality of the work done by the individual, but excluding other forms of bonus (e.g. profit share or share participation which reflect long-term performance or reward loyalty).
The 12-week qualifying period:
To qualify a worker must perform the same role for the hirer for 12 continuous calendar weeks. A whole calendar week is counted even if the worker is only engaged for part of the week.
Access to employment vacancies and on site facilities:
From the start of their assignment (there is no 12-week qualifying period for this right) an agency worker has the right to be told of any relevant vacancies at the hirer during their assignment.
From the start of his assignment an agency worker also has the right to be treated equally in regard to access to "collective facilities and amenities" e.g. the canteen, child-care facilities, transport services etc. Less favourable treatment with regard to access to or provision of these facilities may be justified on objective grounds.
Definitions:
· A “temporary work agency” is a business that supplies individuals to work temporarily for, and under the supervision and direction of hirers, or pays for (or receives or forwards payment for) the services of individuals who are supplied to work temporarily for and under the supervision and direction of hirers.
· An "agency worker" is someone who is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer, and who has a contract with the temporary work agency which is a contract of employment with the agency or any other contract to perform work and services personally for the agency.
· A “hirer” is defined as "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".
For further information please contact Ellen Parkin at Spire HR Solutions Limited in Warrington on 0845 075 3668
