RIGHTS FOR AGENCY WORKERS

RMT helpline 0800 376 3706 :: september 2011 :: RMTnews 17 The Agency Worker Regulations come into force on October 1, implementing the European Agency Workers Directive and introducing a right for agency workers to be given the same basic working and employment conditions as if they had been recruited by the firm that hires them. This means they have the same rights in relation to pay, duration of working time, length of night shift work, rest periods and rest breaks and entitlement to annual leave as a direct employee of the firm. However, this right will only apply after the agency worker has been with the hirer for 12 weeks. And the employment status of agency workers is not changed. They do not become an employee of the hirer. Agency workers will not be entitled to redundancy pay, or not to be unfairly dismissed, unless the reason they are dismissed is because they tried to enforce their rights under the regulations. The regulations will apply to individuals who are supplied by a temporary work agency to work under the supervision of the hirer. They apply when: • There is a contract (an employment contract or an agreement to provide services personally) between the worker and the temporary workers agency (TWA) • The worker is temporarily supplied to a hirer by the TWA; and • When working on an assignment the worker is subject to the supervision and direction of the hirer. So, after 12 calendar weeks in the same assignment an agency worker will be entitled to the same basic working and employment conditions as if they had been directly recruited by the hirer rather than being supplied through an agency. Time spent in an assignment to a hirer before 1 October will not count. An agency worker will have continuity of service provided they are working for the hirer in the same role and have not had a break of more than six weeks. However sickness absence of up to 28 weeks will not break continuity and other absences such as maternity or paternity leave will also count towards the 12 week threshold. Continuity is also broken if the agency worker is moved by the hirer to a “substantially different” role. WHAT BASIC PAY MEANS Although agency workers will be entitled to the same basic pay as employees, including bonuses, holiday pay and vouchers, they will not have pension rights or be entitled to sick pay, maternity, paternity or adoption pay or to redundancy or other payments if their employment is terminated. Neither will they have access to profit share or share-option schemes, to expenses or to bonuses which are not directly attributable to the quality or quantity of the individual’s work, such as for long-term service. However, agency workers will be entitled to some benefits from day one of their assignment, including the same access to the hirer’s canteen facilities, childcare facilities and transport services as employees. They will also have the right to be informed about vacancies with the hirer and must be given the same opportunity to find permanent work with the firm as other employees. If they are denied these rights then they can be enforced directly with the hirer rather than with the agency. RIGHT TO INFORMATION The regulations give agency workers the right to ask their agency to provide them with information about what the hirer’s basic working and employment conditions are. This information has to be provided within 28 days. If the information is not provided by then, the agency worker can apply directly to the hirer for the information. Redress If an agency worker does not receive equal treatment they can pursue a claim in the employment tribunal (ET). A tribunal will be able to make a declaration as to the rights of the agency worker and order unlimited compensation – a minimum of two weeks pay. However, this will not include any amount for injury to feelings. The agency will usually be liable for a hirer’s failure to provide equal treatment but will have a defence if it can show that it took reasonable steps to obtain information from the hirer about its basic employment and working conditions and that it acted upon any such information received. It may be that an ET will apportion liability for the breach of the regulations between the agency and the hirer. The agency worker has the right not to be unfairly dismissed or otherwise treated differently if they bring ET proceedings under the regulations or do anything else to assert their rights or refuse to give up those rights. ANTI-AVOIDANCE The Regulations contain anti- avoidance provisions aimed at preventing assignments being structured so as to avoid the obligation to provide equal treatment, such as by preventing an agency worker achieving 12 weeks continuity of service. An ET can impose a penalty of up to £5,000 if a hirer or agency is found to have tried to avoid the provisions. However there is nothing to stop a hirer from simply not using agency workers on long- term assignments and they may consider whether there are any alternatives such as setting up directly employed banks of workers who are on zero-hours contracts which do not specify the number of hours that the employee will be required to work. RIGHTS FOR AGENCY WORKERS Etienne Attala of Thompsons Solicitors explains what rights the new Agency Worker Regulations offer