Agency Worker Regulations
Qualified in accountancy....
.... experienced in leisure
Agency Worker Regulations 2010 will become law from 1st October 2011.
The objective is to give agency workers equal treatment with directly employed workers carrying out broadly the same work. Employment status per se is not affected and as such agency workers do not gain rights such as over unfair dismissal, discipline and grievance and whistle-blowing. (Although even these may accrue after one year of engagement.)
The Regulations do not apply to the genuinely self-employed – those that exhibit the badges of trade, such as self-direction and ability to make profit or loss. For further guidance on the definition of self-employment, clients are advised to refer to Accounting & General.
There are anti-avoidance provisions, to stop the structuring of contracts to specifically avoid the Regulations.
From Day One
All qualifying agency workers are entitled to access to the hirers collective facilities, such as canteen, childcare, transport services, car parking and vending machines. They must also be informed of any vacant employment posts with the hirer. All unless different treatment can be objectively justified.
Liability for failure to provide these rights rests with the hirer, not the agency.
From Week Twelve
Core entitlements are triggered after twelve calendar weeks continuous service in the same role with the hirer. The entitlements are not retrospective and for those in the midst of hire contracts at 1st October, ‘the clock ticks’ from that date.
After twelve weeks the agency worker is entitled to the same basic working conditions as an equivalent permanent employee. This will be evidenced in:
- Pay (excluding pensions, sick pay schemes, private health insurance, notice pay, redundancy and company car)
- Holiday entitlement
- Working hours
- Bonuses and other benefits – except those based on business performance, or to encourage long service.
- Vouchers with a monetary value
- Rest periods and breaks
- Ante natal appointments
Liability
Liability for failure to provide equal treatment will generally lie with the agency – not the hirer, although day one rights liability will always rest with the hirer.
However, where the agency has obtained, or taken reasonable steps to obtain, information from the hirer, the liability for breach is likely to move to the hirer.
Agency workers who believe they may be being treated unequally may ask their agency (and then the hirer, if the agency does not respond within thirty days) for written details of the hirers basic working and employment conditions.
Generally breaks of up to six weeks will not break the qualifying period, extended to twenty eight weeks for jury service. But the clock will restart if the worker begins a new assignment in a substantially different role.
Agency workers may be awarded unlimited compensation for breach of equal treatment rights, or up to £5,000 if it can be shown that contracts have been deliberately structured in an attempt to avoid obligations.
Rights will not apply if the agency worker is permanently employed by the agency and is paid at least 50% pay between assignments.
Gratuities and Troncs
Guidance on the treatment of gratuities and troncs has not been given by the Government. It can only be suggested that the rules outlined above are applied. For example a tronc paid at end of season, to encourage longevity of employment is unlikely to apply. But gratuities applied at the end of a shift in which the agency worker has played equal part will be applicable.
An independent tronc master will need to be informed of the agency workers position, and if necessary include the worker in the tronc.
Link to the Direct Gov news page on agency worker rights
Link to the Direct Gov page on agency worker day one rights
Link to the Direct Gov page on agency worker rights after twelve weeks
Link to the main News page of Accounting & General
Accounting & General- Accountants Devon, Accountancy Devon, Devon, Torquay, Paignton, Brixham, Cornwall, Somerset, Dorset|© 2011
