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October 2011

Implementation of the Agency Workers Directive

The Agency Workers Regulations 2010 SI 2010/93 („the Regulations‟) were laid before Parliament on 21 January 2010. They are due to come into force on 1 October 2011.

The Department for Business, Innovation and Skills (BIS) notes in its response to the consultation on draft regulations implementing the Agency Workers Directive that some stakeholders had pressed for an earlier implementation date, but BIS believes that all concerned should be given time to prepare for the changes that the Regulations bring about, especially given the important role the agency sector will play in the economic recovery.

As agreed in 2008 by the TUC and CBI, the changes will give agency workers the right to the same pay, holidays and other basic working conditions as directly recruited staff after 12 weeks in a given job.

According to BIS, the final Regulations retain the previously proposed approach on the calculation of the qualifying period, namely that it should be 12 calendar weeks regardless of working pattern (e.g. part-time work or full-time work). A new qualifying period will begin only if a new assignment with the same employer is substantively different or if there is a break of more than six weeks between assignments in the same role. Workers who are genuinely in business on their own account (e.g. self-employed or working through a corporate vehicle) will not be within scope, but those employed via umbrella companies or other intermediaries will be.

The rights on pay will apply not just to the basic hourly rate, but to all pay for work done, including bonuses that are directly related to the performance of the agency worker personally. However, as set out in the Directive, they will not extend to some of the wider benefits that permanent staff can enjoy in the context of their longer-term relationship with their employer, such as occupational pensions and sick pay.

To ensure that workers are not deprived of their rights by those who would seek to avoid equal treatment the Regulations include provisions that will deal with repeat assignments designed to prevent workers acquiring equal treatment rights. Agencies and hirers will face the prospect of having to pay out up to £5,000 to the worker if an employment tribunal finds that these specific anti-avoidance rules have been breached. To provide a greater deterrent in low-value cases there will be a general minimum award of two weeks‟ pay, subject only to tribunal discretion if that level of award does not seem reasonable.

As far as liability is concerned, the agency will be responsible for any breach of a right in relation to equal treatment for which they are responsible but will have a defence if they have taken “reasonable steps” to obtain the necessary information from the hirer and acted “reasonably” in determining the agency worker‟s basic working and employment conditions. In such cases, the hirer will be liable. The hirer
is also liable to the extent that they are responsible for any breach of a right in relation to equal treatment.

As far as the provision of information about equal treatment is concerned, after 12 weeks have passed, an agency worker will be able to request written information from the agency (and subsequently from the hirer) about any aspect of equal treatment which they do not believe they are receiving. The agency and, if necessary, the hirer will each have 28 days to respond, to run from the date of receipt of the request.

Other benefits that agency workers will gain from the first day of their assignment include:

•  information about internal vacancies to give them the same opportunity as other workers to find permanent employment; and

•  equal access to on-site facilities such as child care and transport services. For details of the BIS response to the consultation on draft regulations implementing the Agency Workers Directive, see www.berr.gov.uk/files/file54289.pdf   

For a copy of the Agency Workers Regulations 2010 SI 2010/93, see www.opsi.gov.uk/si/si2010/uksi_20100093_en_1