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Business
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11/2/2011
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Are you ready for the Agency Workers Regulations 2010?
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The Agency Workers Regulations 2010 (Regulations) came into force on October 1, implementing the Temporary Agency Workers Directive. Ben Smith, an Associate in the Charles Russell employment law team, looks at the issues...
The Regulations entitle “agency workers” to certain employment rights in line with those received by comparable employees or workers of the hiring company from either day one of their assignment with the hirer or after completion of a 12-week qualifying period. Under the Regulations, agency workers are not entitled to more favourable treatment than the hirer’s employees or workers, only equal treatment.
Pharmacies which regularly hire agency workers need to understand the obligations on them as hirers under the regulations and the Government has published guidance to assist. Those who fail to comply with the regulations can face financial penalties before an employment tribunal.
Application of the Regulations
“Agency workers” are individuals supplied by a work agency to work temporarily for, and under the direct supervision of, a company (the hirer). The regulations do not apply to individuals who are self-employed, or who provide services through a service company where the hirer is a client or customer of that company. Neither will the regulations be triggered where an agency is placing individuals in permanent roles with a company.
Equal Treatment
Day 1 rights
From the outset of an assignment, agency workers are entitled to equal access to collective facilities and amenities (such as childcare, canteen or transport services) provided by the hirer to a comparable worker or employee. Agency workers are also entitled to access information about vacancies within the hirer which would be available to a comparable worker (for example, via an intranet facility). Entitlement to these day one rights relies on there being an actual “comparator” (an employee or worker of the hirer who does the same, or a sufficiently similar, job to the agency worker) based at the same establishment as that agency worker.
Rights accrued after completing a 12-week qualifying period
After completing a 12-week qualifying period with the same hirer (see below), an agency worker will be entitled to the same basic terms and conditions of employment as if they had been employed or engaged directly by the hirer. These are:
pay (basic pay and additional pay directly linked to work undertaken, including overtime, shift allowances, unsocial hours payments, vouchers or stamps with a monetary value (e.g. luncheon vouchers) and bonuses linked to individual performance)
duration of working time
length of night work
rest periods
rest breaks
holiday entitlement
An agency worker’s entitlement to equal treatment in relation to pay does not extend to sick pay, maternity, paternity and adoption leave or redundancy payments, for example. Nor do the regulations give agency workers unfair dismissal rights or other employment rights. However, under the Pensions Act 2008, agency workers will have the benefit of workplace pension saving with an employer contribution from 2012, when the NEST (National Employment Savings Trust) legislation comes into force.
12-week qualification period
To qualify for the rights to equal pay, hours and holiday set out above, an agency worker must work in the same or substantively the same role with the same hirer for 12 calendar weeks (regardless of how many hours they work on a weekly basis).
The clock for calculating the qualification period will “pause” for any period of time the agency worker ceases work due to annual leave, and for up to 28 weeks if the worker is absent due to jury service or sickness. The clock will also “pause” where there is a break between assignments if the break is not more than six weeks. Where an agency worker is absent through contractual or statutory maternity, paternity or adoption leave, pregnancy or maternity related absence, the clock will continue and their absence will count towards the qualifying period.
Liability
Hirers are responsible for ensuring agency workers receive their day one rights. Thereafter, it will be agencies who will have primary liability for breach of the equal treatment principle. Agencies will have a defence if they can show that they have taken all reasonable steps to obtain the necessary information from the hirer and acted reasonably in determining the agency worker’s rights. Pharmacies, as hirers, could be liable if they are responsible for the infringement; for example, by failing to provide sufficient information on comparable employee or worker’s terms and conditions.
Action Points
Pharmacies should:
review the positions for which agency workers are engaged and identify any comparable employee or worker at that establishment
ensure that agency workers can utilise collective facilities and amenities and can access job vacancies within the pharmacy from day one of their assignment
implement any necessary systems to keep track of agency workers’ assignments and rest breaks (where workers are engaged on a repeated basis) to ensure that necessary information can be supplied to agencies as required
The above is a general overview and we recommend that independent legal advice is sought for your specific concerns. Ben Smith in an Associate in the Employment Law team at Charles Russell LLP and can be contacted on Ben.Smith@charlesrussell.co.uk.
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