What are the regulations?
The regulations came into force on the 1st October 2011 and are designed to protect and support agency workers who have completed a qualifying period of 12 calendar weeks (full-time or part-time) in the same job, by giving them the same legal rights as direct employees.
Who is an Agency Worker?
Agency workers are those who work temporarily under the supervision, direction and control of the hirer (whether through an intermediary or otherwise).
Professionals who offer their services as a genuine business relationship (where the hirer is the customer) are not deemed to be agency workers. Guidance provided by the Department for Business, Energy and Industrial Strategy states that “a profession is normally someone who is certified by a professional body such as a doctor or lawyer. Normally a professional or a person in business providing services to a client or customer is not working under that person’s supervision or direction. But it is still possible for someone in a profession or in a business to be an agency worker if there is no such client or customer relationship.”
What are the Legal Rights afforded to agency workers under the regulations?
I. Equal pay including contractual entitlements of the comparable permanent employee i.e. same basic pay plus overtime, shift allowances, unsociable hours’ premiums and piece-work bonus.
II. Equal working time meaning the same rest periods, same holiday entitlement as permanent employees
III. Agency workers will also be entitled to access on-site facilities that an end user client provides to its own workers
IV. Agency workers must be advised by a client of vacancies which arise in the client’s business.
V. Pregnant agency workers will be allowed paid time off to attend antenatal medical appointments and antenatal classes (alternative assignments must also be found where the existing role is no longer suitable on H&S grounds)
What do Recruitment Agencies need to consider?
- Liability for compliance will rest with the recruitment agency* and they should therefore endeavour to obtain the necessary information in sufficient time to allow it to comply with the regulations (i.e. before the assignment of in good time prior to the 12 week qualifying period has been completed. A recruitment agencies defence would be based on the nature of the information supplied by Hirer.
- Agency workers will have the right to request from their Employment Business access to information on their equal treatment rights.
- For Pregnant agency workers, if alternative work cannot be found, then they will have the right to be paid by the agency for the remaining expected duration of the original assignment.
*The requirement for points III and IV under the legal rights section above will rest with the hirer.
Agencies that supply agency workers who fall under the regulations will need to consider cover for Employment Practice Liability and Legal Expenses to protect against claims from agency workers alleging unfair treatment.
What impact does the repeal of the Swedish derogation (which came into force in April 2020) have on recruitment agencies?
Previously, the AWR provided an exemption (Regulation 10 and 11) from the right to equal pay where the agency workers were employed under “pay between assignments contracts” (or Swedish derogation contract). Under such contracts, the agency worker would be permanently employed by the recruitment agency and paid by them in between assignments but would opt out of their entitlement to the same pay as direct employees, even when they had worked for the qualifying period (12 calendar weeks).
With effect from April 2020 this exemption has been repealed and an agency worker can no longer opt out of out of equal pay entitlements via such contracts.
As a consequence of this, recruitment agencies making use of such contracts should have already taken legal advice on terminating such contracts prior to the 6 April 2020 or come to a mutually agreeable solution with their agency workers.
If an agency worker feels that a recruitment agency has not complied with the requirements of this regulation from 6 April 2020, they could potentially enforce their rights at the Employment Tribunal subject to legal advice.
Recruitment agencies should continue to use contracts with their client (the hirer) which impose on the client:
- The responsibility for the direction and supervision for the agency worker;
- The responsibility for the acts or omissions made by the agency worker.
- The requirement to hold Employers Liability, Public Liability and Professional Indemnity insurance;
The area of concern is with a non-standard contracts i.e. the clients’ terms which usually try to make the agency responsible for these liabilities.
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