An Agency Worker (often referred to as a ‘temp’) is someone who has a contract with the Temporary Work Agency (TWA) (an employment contract or an agreement to perform work or provide services personally) but works temporarily for and under the direction and supervision of a Hirer. The unique, tripartite relationship between agency worker, agency and hirer is a key feature of these Regulations.
For someone to be an agency worker, the following should apply:
NOTE: In the event of a dispute, it will be for the Courts to decide the reality of the relationships between the parties involved.
From Day 1
This is the only element of these Regulations where there can be objective justification for less favourable treatment. Cost may be one factor to take into account but it is unlikely that this alone will justify different treatment. Practical and organisational considerations could also be a factor. Even if there is objective justification, it is advisable to consider whether it is possible or feasible to offer agency workers certain access to facilities on a partial basis, as an alternative to excluding them altogether.
For access to facilities it will often be clear what is required however, if it is necessary to examine the Agency Worker alongside a comparable worker, it is important to ascertain that the following applies:
The employee or worker is doing the same or broadly similar work to the agency worker
The employee or worker is working at the same location as the agency worker or, if there is no such person, be in another location owned by the hirer.
If there are no comparable workers or employees there is no entitlement to equal treatment.
For access to information about vacancies, this is limited to where there is a comparable employee or worker currently based at the same establishment.
What the Hirer must do:
If your Company hires agency workers, you are responsible for ensuring that all agency workers can access your facilities and are able to view information on your job vacancies from the first day of their assignment with you.
After 12 weeks in the same job with the same hirer
The entitlements then extend to pay and other basic working conditions (annual leave, overtime, etc). Pregnant agency workers are also allowed to take paid time off for ante-natal appointments during an assignment.
In summary the entitlements include:
Bonuses linked to individual performance
These apply to the Agency Worker where the bonus or incentive payment or reward is directly attributable to the amount and quality of work done. It is not relevant if it is for another reason other than the amount or quality of the work e.g. a loyalty award.
Annual pay award
Where an annual pay increment applies, an agency worker should receive the pay increment that he or she would have been entitled to if recruited directly to do the same job.
As with rest breaks, if a hirer would have given a more generous contractual leave entitlement to the agency worker if recruited directly to fill the same job, the agency worker concerned should receive the same enhanced entitlement once the 12-week qualifying period has been fulfilled. Agents may deal with any additional entitlement over and above the statutory entitlement, as a one off payment at the end of the assignment or as part of the hourly/daily rate.
The Regulations do not require integration of agency workers into performance appraisal systems for someone directly recruited. It may be easier in some circumstances to fully integrate the agency worker but it is not a requirement. However, systems may need to be implemented to ensure that the worker can be properly assessed in order to achieve bonuses etc. to which they may be entitled and therefore a simplified appraisal or system of assessment is encouraged.
Pregnant Workers and New Mothers
The following applies:
A Summary Of What the Hirer must do:
If your Company hires agency workers, you will need to provide your agency with up to date information on your terms and conditions so that they can ensure that an agency worker receives the correct equal entitlements after 12 weeks in the same job. Don’t forget that this includes details of annual pay reviews. You will need to undertake any risk assessments for pregnant workers and endeavour to act upon these but refer back to the Agency where the requirements genuinely cannot be met.
Does not apply to managed service contracts, bank staff, individuals employed to a permanent post from an agency or secondments. However, do be aware that these groups may be subject to entitlements under other areas of legislation.
HIRERS ARE encouraged to think about developing an induction pack for agency workers so that the entitlements are clear.
Technical Aspects Of The Regulations
Calculating the 12 Week Qualifying Period
The 12 week qualifying period is triggered by working in the same job with the same hirer for 12 calendar weeks.
A calendar week comprises any period of seven days starting with the first day of an assignment. Calendar weeks are accrued regardless of how many hours the worker does on a weekly basis. Therefore, even if the agency worker is on assignment for only a couple of hours a week, it will still count as a week and they will still be entitled to equal treatment after 12 calendar weeks.
An agency worker can qualify for equal treatment after 12 weeks in the same role with the same hirer, regardless of whether they have been supplied by more than one TWA over the course of that period of time.
The Qualifying Clock
Given that working patterns of agency workers can be irregular, the Regulations provide guidance as to circumstances which allow for breaks in an assignment which nonetheless do not prevent the worker from completing the qualifying period.
Guidance encourages that we think of the qualifying period as a clock which runs from 0 to 12. Sometimes a gap between assignments or a move to a new assignment will mean that the clock is reset to 0 and must start again. Sometimes other circumstances will mean that the clock is paused but will continue to tick when the agency worker returns to the hirer. N.B. The clock is not retrospective so will not take account of periods worked prior to 1st October 2011.
This can be summarised as follows:
Reasons for the qualifying clock to pause
Reasons for the qualifying clock to continue to tick in the event of break
Definition of New Hirer
The qualifying clock will be reset to zero if the agency worker stops working for one hirer and begins working for another.
A new hirer for this purpose must be a different person, or be a different legal entity.
Where a hirer has multiple sites, merely moving the worker from one site to another will not usually break continuity unless it is a substantively different role.
Where a hirer is part of a larger group and each company has its own legal identity, then the qualifying period will restart when an agency worker moves between the different legal entities.
Definition of Substantively different
If there is a substantive change to a job role within the same hirer, the qualifying clock is reset to zero. For this to apply, the work or duties which make up the whole or main part of a role must be substantively different. It will not suffice that the agency worker moves departments but does similar work, a line manager changes or a different rate of pay applies.
A Summary of What the Hirer must do:
In order for the 12 week qualifying clock to be reset to zero, the hirer must notify the agency that the work or duties have changed and this information must be passed to the agency worker. A hirer must notify an agency in writing when there is a new role that is substantively different and record details of on the job requirements.
Anti Avoidance Provisions Of The Regulations
Hirers and Agencies should be aware of the anti-avoidance provisions which prevent a series of assignments being structured so as to prevent an agency worker from completing the qualifying period
An example of this would be moving a worked to and fro across Group companies, a pattern of breaking service at the point where the qualifying clock is reset etc. where there is the intention to prevent the receipt of equal treatment and accrual of entitlements. This is a matter that a Tribunal would assess.
How equal treatment is established
Deciding what equal treatment means is usually obvious and a matter of common sense. The requirement is to treat the worker as if he or she had been recruited directly to the same job.
It covers basic working and employment conditions which are ordinarily included in the following:
In most cases equal treatment can be simply established by giving the same relevant entitlements as if the individual had been recruited as an employee or worker to the same job.
Employee Representation Bodies
From 1 October 2011 temporary agency workers will count towards the thresholds in Temporary Work Agencies for the purposes of calculating the thresholds above which a representative body may be established. This will not apply to agency workers that are employees of the Agent.
In the case of workers’ representatives and where there is a statutory obligation to provide certain information e.g. in collective redundancy and TUPE situations, you must provide relevant information on the use of agency workers supplied in all the situations where there is currently an obligation on employers to provide information on the employment situation. The information must include:
The regulations do not provide new representational or consultation rights to Agency Workers
The law does not apply to the establishment of a representative body for the purposes of collective redundancy.
Other Rules For Agencies
Other rules that apply to agencies who offer ‘pay between assignments’ contracts to their temporary workers. Requirements of the TWAs are extensive and can be found in the full guidance.
Formal process for complaints
Under the regulations an agency worker can take the following action.
In relation to Day 1 entitlements, the agency worker should approach the hirer direct with a written request for information before making a claim. The hirer has 28 days to respond in writing from receipt of the request.
The hirer should provide a written statement with all relevant information relating to the rights of a comparable worker or employee and reasons for the treatment of the agency worker.
If the request is in relation to basic working and employment rights applicable after 12 week, the agency worker cannot request information until the 12 weeks have elapsed. In this instance the agency worker can request a written statement from the Agency about any aspect of equal treatment they do not believe they were receiving before making a claim.
If an agency worker has not received a written statement within 30 days of making that request, the agency worker can then write to the hirer requesting the same information.
Awards and Penalties
The agency worker can receive loss of earnings or a compensatory award dependent on the breach. The minimum award is two weeks’ pay. There is no maximum award.
Where a Tribunal finds evidence of a breach by way of deliberate avoidance of accrual of the 12-week qualifying period and intent to prevent the worker from gaining equal treatment, the award can be up to £5,000 against the Hirer or Agent or split between the two.
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