Merit in the community

Agency Workers Regulations:

The Agency Workers Directive is a piece of European legislation which became law on 5th December 2008. All EU member states have 3 years from that date to implement the Directive via their own national legislation. In England, Wales and Scotland, the Directive will be implemented via the Agency Workers Regulations 2010, ‘the Regulations’, which will come into force on 1st October 2011.

The main purpose of the Agency Worker Directive (AWD) is to ensure the appropriate protection of temporary agency workers through the application of the principle of equal treatment, and to address unnecessary restrictions and prohibitions on the use of agency work.

The Regulations will include a ‘qualifying period’ of 12 weeks, after which agency workers will have the right to the same basic working and employment conditions that they would receive if they were engaged directly by an end user client to do the same job; this is limited to conditions that relate to pay and working time.

Agency workers will also be entitled access to collective facilities and amenities that an end user client provides to its own workers and to be advised by a client of vacancies which arise in the client’s business. This is the case from the first day of their assignment. Some further provisions are also made for pregnant workers after the qualifying period, although other rights are expressly excluded.

Temporary workers will continue not to have rights to claim unfair dismissal, redundancy pay, maternity leave, occupational sick pay, company pension schemes, financial participation and bonus payments based on organisational or company performance. As these are considered a reflection of the long term relationship between an employee and an employer.

The Regulations are to include Master and Neutral Vendor agreements, but it has been confirmed that the intention is for genuinely self-employed workers to be excluded from the scope of the Regulations. With this said, it is important to be aware that simply calling the worker a ‘Limited Company Contractor’ will not automatically exclude them.

Agencies and clients will need to work together to prepare and implement the Regulations and ensure that our obligations are fulfilled, as if an agency worker considers that they have not received equal treatment they can take an action against the agency, the client or both in an employment tribunal. Agencies and clients alike should ensure that their employees understand the Regulations and the rights that they give to agency workers, and do not behave in such a way as to prevent an agency worker receiving their entitlement.

What needs to be established:

Pay:

• What are the hourly rates payable to a comparable employee or worker?
• Alternatively, if a annual salary is paid, what hourly rate does that equate to?
• Is commission paid? If yes, how is this calculated?
• What bonuses are payable, on what basis and when?
• What rates are paid for unsociable hours?

Hours of work:

• What are the anticipated hours of work?
• What rest breaks does the client give to other workers? Are they paid?

Annual leave:

• What contractual holiday is the comparable employee or worker entitled to?
• is it equal to or greater than the statutory minimum?

Previous time working for the client:

Has the worker worked in the same role at that client previously, even through another agency? This is important because they may have already accrued some time towards the qualifying period.

This information needs to be ascertained in sufficient time if the assignment is likely to extend beyond 12 weeks. Parties will also have to be clear of the 12 week derogation period and ensure there is a system in place to flag this when it comes around.

The new coalition government are expected to provide further guidance on the interpretation of the Regulations at the beginning of 2011. At this late date it is very unlikely that any changes will be made to the regulations themselves. It is important to note that guidance is not law . Only case law will determine how elements of the regulations will be interpretation by the courts.

We will be working very closely with all of our clients to ensure that the introduction of the Regulations passes smoothly and will be offering training workshops for businesses on request.

If you have any further questions or would like to attend one of our seminars then please do not hesitate to contact Merit for more details.

Information from www.rec.co.uk