amendments to the Agency Workers Regulations 2010
In an unexpected turn of events, this week
(commencing 8 August 2011) the Government has published the Agency
Workers (Amendment) Regulations 2011 (the Amendment Regulations) to
amend the Agency Workers Regulations 2010 (the AWR).
The AWR give equal treatment rights to agency workers and come
into force on 1 October 2011. Regulation 5 of the AWR
provides that agency workers will have the right to equality of
treatment with comparable direct recruits of the hirer in respect
of certain basic working and employment conditions relating to pay,
the duration of working time, night work, rest periods, rest breaks
and annual leave. There is a 12-week qualifying period under
the AWR before the agency worker qualifies for the Regulation 5
right to receive equal treatment from a temporary work agency.
In addition, under Regulations 12 and 13, a hirer will be
responsible for providing access to its collective facilities and
amenities and details of permanent vacancies from 'day one' of the
agency worker's assignment. Our previous bulletins set out the
detail of the AWR and how employment businesses and end users
should prepare for their implementation. We also explain that
in a number of areas the AWR remain unclear. The Amendment
Regulations correct a limited number of so-called 'drafting
errors', most notably:
- the definition of 'agency worker';
- the provisions governing the use of 'pay between assignments'
contracts of employment (also known as 'Swedish derogation'
contracts); and
- the provisions governing the liability of temporary work
agencies and hirers for breach of the agency worker's right to
equal treatment under Regulation 5.
The Amendment Regulations alter the (probably unintentionally
narrow) definition of an 'agency worker' in Regulation 3(1) of the
AWR from an individual who has a contract of employment with the
agency or 'any other contract to perform work
and services personally for the
agency' to an individual who has a contract of
employment with the agency or 'any other contract with
the agency to perform work or services
personally'. This shift in emphasis is to make it clear
that the agency worker does not have to perform work or services
for the agency itself. The agency worker will have a contract
with the agency which most usually will cover work or services for
a hirer. The change to 'work or
services' also broadens this definition which now better
reflects the nature of agency working.
There is an exemption under the AWR from the obligation to
provide equality of pay to agency workers who are employed on
permanent contracts of employment by a temporary work agency and
paid between assignments if available to work. The Amendment
Regulations amend Regulation 10(1)(c) to make it clear that the
temporary work agency's obligations to pay the agency worker and to
look for suitable work when the agency worker is not working but is
available to do so only apply after the end of the first assignment
under that contract. This is to ensure that there is no
confusion or expectation that an agency worker will be entitled to
receive pay during any period spent not working but available to do
so before the commencement of the first assignment under the
contract (if, for example, he or she enters into the contract some
time in advance of the first assignment).
The Amendment Regulations also rephrase a temporary work
agency's exemption from liability (Regulation 14) for a breach of
the right to equal treatment under Regulation 5, where it is
established that the temporary work agency has obtained, or has
taken reasonable steps to obtain, relevant information from the
hirer and acted reasonably in determining what the agency worker's
basic working and employment conditions should be at the end of the
12-week qualifying period. The changes make it clear that such
information must be about the hirer's basic working and employment
conditions, but it only has to be information about the relevant
terms and conditions of a comparable employee of the hirer if this
information was needed to assess compliance with Regulation
5. If the temporary work agency can establish this defence,
the hirer will be liable for the breach. The hirer will
always be liable for breach of the 'day one' rights given by
Regulations 12 and 13.
what should you do next?
If you have already drafted contracts and
other documentation to cover the introduction of the Agency Workers
Regulations, you should revisit them to see if they need amending
in light of the changes made by the Amendment Regulations.
