New regulations enhance agency workers' rights
Emma
Burns
20 | 09 | 11
It is not surprising that a significant number of
employers seem to be unaware that the Agency Worker Regulations
2010 come into force in less than two weeks time on 1 October
2011.
Originally drafted by the previous Labour
Government, it looked at one point as if the new Coalition
Government were going to do their utmost to try to avoid bringing
the draft regulations into force. Certainly, in opposition the
Conservative Party had been bitterly opposed to the regulations and
an immediate review was announced when they got into power, albeit
with coalition partners and not as outright rulers.
However. the regulations survived that review and are about to
come into force, largely unchanged.
For observers of employment law developments over
the years (yes there are some of us), this has not come as a great
shock. In fact, the Government had very little choice but to enact
the regulations, deriving as they do from European law. Their
deadline to do so, 5 December 2011, was an immovable feast and some
might suggest that all the talk of delay and reduction of red tape
and bureaucracy was always little more than bluster.
What are the agency workers regulations?
So what are the regulations and what do they
do? Well, one thing that they definitely do not do is to give
agency workers full employment protection rights.
The employment status of agency workers has been the subject of a
great deal of case law in recent years. In some cases, particularly
where agency workers have been engaged to perform the same work
over a considerable duration of time, the courts and tribunals have
held that they have become employees with full employment law
protection.
The problem with these cases has been that
different conclusions have been reached as to the identity of the
employer. In some cases, the hiring organisation has been found to
be on the hook. However, in other cases, the party
responsible for being the employer, and hence carrying the
liability for claims, has been the agency supplying the worker.
Although the law seems to have reached a more
settled position in recent times whereby agency workers have less
chance of being employees, the different approaches of different
courts and myriad of case law means that this remains an area which
lacks clarity for employers. Such a lack of clarity always carries
with it legal risk.
The regulations could have included provisions
to address this, but instead they avoid the question altogether.
Their decision to omit this detail leaves employers, and
their lawyers, to find their own solutions in order to minimise the
risk, mainly through the use of carefully drafted and negotiated
documentation.
Agency worker rights at time of employment commencement
Instead of clarifying the area of confusion
identified above, the regulations give agency workers certain
limited rights to be treated equally to permanent employees of the
organisation hiring them.
It is important to be aware that:
- Not all rights accrue from day one of any
assignment. Only a very limited range of rights apply from the very
start of the assignment. Essentially there are two rights:
1) rights to access collective facilities and
amenities provided by the hirer to its employees. The types of
facilities covered are things such as access to canteens, transport
services, staff common rooms and workplace crèches.
2) rights to information about vacancies in the
hiring organisation
Any claim for breach of these day one rights is
made by the agency worker against the hiring organisation and
cannot be made against the agency that supplied them.
Agency worker rights acquired after 12 weeks
Additional rights are acquired for agency workers
after 12 weeks of working on an assignment. There are some slightly
complex provisions which concern how the 12 week qualifying period
is calculated, but these are beyond the scope of this article. The
additional rights are to equivalence in relation to pay, duration
of working time, night work, rest periods, rest breaks, and annual
leave. In addition, specific provision is made for certain rights
for pregnant agency workers.
Claims in respect of the additional rights are
unusual in that they can potentially be pursued by agency workers
against both the hiring organisation and the agency. The
Regulations contain certain provisions which each party to the
hiring transaction can try to use to effectively drop the other in
it. For example, the agency can seek to escape liability by arguing
that its client, the hirer, failed to give it accurate information
about rates of pay paid to permanent employees.
This idea of setting agency and hirer against each
other is not exactly conducive to maintaining good commercial
relationships. What is more, it is hardly likely to assist the
parties in negotiating the well drafted documentation that could
protect them both against more onerous employment claims arising if
the agency work is declared to be an employee. Instead of working
together, it is very possible that both parties will seek to
protect their own positions and seek to include provisions in the
documentation that have unilateral rather than joint benefits.
It will be interesting to see what happens in the
agency worker world as a result of the regulations. Lots of
organisations use agency workers because they offer high levels of
flexibility in relation to workforce needs, particularly where the
business faces unpredictable demand and has difficulty recruiting.
Traditionally they can also be cheaper than permanent employees,
because they do not qualify for benefits such as pension. This is
not set to change with the Regulations, but is by no means the
universal experience in any event. In some sectors agency workers
are more expensive than permanent employees.
For more information contact emma.burns@hughjames.com