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Agency Workers Regulations. Alana Jones Jones Cassidy Jones Solicitors. Aim: To Explain. Scope of the Regulations Day one rights Rights conditional upon qualifying period Operation of 12 week period. Aim: To Explain. Anti-avoidance provisions Protection related to maternity

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agency workers regulations

Agency Workers Regulations

Alana Jones

Jones Cassidy Jones Solicitors

aim to explain
Aim: To Explain
  • Scope of the Regulations
  • Day one rights
  • Rights conditional upon qualifying period
  • Operation of 12 week period
aim to explain3
Aim: To Explain
  • Anti-avoidance provisions
  • Protection related to maternity
  • Scope for derogation: permanent employment
  • Enforcement of rights/potential liabilities
aim suggestions
Aim: Suggestions

Action points which might assist organisations to prepare for changes ahead.

scope of the reg s
Scope of the Reg’s

Regulation 3 defines “agency worker”.

Regulation 4 defines “temporary work agency”.

scope of the reg s6
Scope of the Reg’s

Covers

  • worker (W) supplied to hirer (H)
  • to work temporarily
  • under H’s supervision & direction
  • contract between W and supplying agency (A)
scope of the reg s7
Scope of the Reg’s

Within scope:

  • W supplied by intermediary
  • W having contract with umbrella company

Outside scope:

  • Genuinely self-employed in business on own account
  • Managed service contracts
day 1 rights
Day 1 Rights
  • Apply from start of assignment
  • H bears responsibility
  • Only H will be held liable if breach
collective facilities amenities
Collective Facilities & Amenities

Regulation 12(1)

W has during an assignment the right to be treated no less favourably than a comparable worker re the collective facilities and amenities provided by H.

collective facilities amenities10
Collective Facilities & Amenities

Include

  • canteen or other facilities
  • childcare facilities
  • transport services
collective facilities amenities11
Collective Facilities & Amenities

Comparable worker

  • (contemporaneous?) employee of H
  • engaged in same/broadly similar work
  • similar level of skills and qualifications?
  • may be based at different establishments
collective facilities amenities12
Collective Facilities & Amenities

Limits

  • no less favourable treatment: qualifying conditions can apply
  • scope for justification on objective grounds
information re vacant posts
Information re Vacant Posts

Regulation 13

W has right to be informed by H of any relevant vacant posts with H to give W the same opportunity as a comparable worker to find employment with H.

information re vacant posts14
Information re Vacant Posts

Comparable worker

  • employee of H
  • engaged in same/broadly similar work
  • similar level of skills & qualifications?
  • at same establishment
information re vacant posts15
Information re Vacant Posts

Limits

  • May inform by general announcement in a suitable place.
  • Parity re notification of relevant vacancies.
  • No adjustment to selection criteria required.
equal treatment after qp
Equal Treatment After QP

Regulation 5:

W entitled to same basic working & employment conditions as W would be entitled to for doing the same job had W been directly recruited by H.

equal treatment after qp17
Equal Treatment After QP
  • Regulation 5 is subject to Regulation 7
  • Regulation 7: completion of QP
basic working employment conditions
Basic Working & Employment Conditions

Are

  • Relevant Ts & Cs ordinarily included in contracts of H’s own workforce
  • Can be collectively agreed Ts & Cs
  • Includes variations after completion QP
relevant ts cs
Relevant Ts & Cs
  • pay
  • duration of working time
  • night work
  • rest periods
  • rest breaks
  • annual leave
comparable employee
Comparable Employee

Right fulfilled where W working under same relevant Ts & Cs as a comparable employee whose contract reflects Ts & Cs ordinarily included in contracts of comparable employees of H.

comparable employee21
Comparable Employee
  • engaged in same/broadly similar work
  • similar level of qualification & skills (?)
  • same establishment/different establishment
  • can be former employee of H
  • hypothetical?
slide22
“Pay”
  • Broad definition subject to exceptions
  • Include vouchers & stamps of fixed monetary value or capable of exchange for money, goods or services e.g.
    • luncheon vouchers
    • discount cards?
exceptions to pay
Exceptions to “Pay”
  • occupational sick pay
  • pension, allowance or gratuity re retirement or compensation for loss of office
  • pay re maternity, paternity or adoption leave.
exceptions to pay24
Exceptions to “Pay”
  • redundancy pay
  • payment re financial participation scheme
  • payment not directly attributable to amount/quality of work done by individual
  • payment for time off under Part 6 ERO
exceptions to pay25
Exceptions to “Pay”
  • guarantee pay (where lay off)
  • loan advance/pay advance
  • expenses payments
  • payments made to individual not in capacity as worker
bonuses
Bonuses

Excluded

  • payment not directly attributable to amount/quality of work done by worker
  • given to worker for reason other than the amount or quality of work done
12 week qp
12 Week QP
  • W must work in same role with same H for 12 continuous calendar weeks during one or more assignments.
  • Significantly limits impact of Regulations.
calculating the qp
Calculating the QP
  • change in job role
  • supply by different agencies
  • fractions of a week count
  • no break of less than 6 weeks breaks the QP (but clock stops)
calculating the qp29
Calculating the QP
  • certain longer breaks do not break the QP

e.g. up to 28 weeks of sickness; paternity leave

  • maternity leave – W deemed to be working
  • temporary cessation
anti avoidance measures
Anti-Avoidance Measures

Regulation 9

is the most likely explanation for the structure of assignments the intention to prevent W from qualifying for right to parity?

avoidance penalty
Avoidance - Penalty
  • Additional award of up to £5,000 per worker
employed agency workers
Employed Agency Workers

Regulation 10

  • scope to avoid right to equal “pay”
  • right does not apply to W with permanent employment contract with H
  • conditions to be fulfilled
conditions to be fulfilled
Conditions to be Fulfilled
  • permanent contract of employment with A
  • certain terms to be included
  • W to be offered at least 1 hour per week
conditions to be fulfilled34
Conditions to be fulfilled
  • contract to state effect re right to “pay” parity
  • protection against termination:

A to provide suitable work or minimum level of remuneration for 4 weeks

maternity rights
Maternity Rights

EG

  • Paid time off for antenatal appointments.
  • Protection where assignment ended on h & s grounds: A to offer alternative assignment or pay.
liability
Liability

“Pay”, hours, rest breaks and leave (Reg 5)

: H or A may be held liable

: A has potential defence

: A can rely on information from H

enforcement
Enforcement
  • After QP W can request written information.
  • If W considers treated in breach of Reg 5.
  • Admissible in evidence.
liability38
Liability

H liable re:

  • Information re job vacancies with H.
  • Equal treatment re collective facilities & amenities.
detriment dismissal
Detriment/Dismissal
  • Protection against dismissal by reason of enforcing rights

- protection against detriment by reason of enforcing rights.

remedies
Remedies
  • compensation
  • no award for injury to feelings
  • additional award where structure of assignments intended to circumvent right to parity
action points
Action Points
  • review notification arrangements for job vacancies
  • review provision of collective facilities and amenities
  • consider issue of “comparable” worker – check job descriptions & person spec’s
action points42
Action Points
  • communication with agency is key
  • review bonus arrangements
perspective
Perspective
  • Reg’s do not confer employment status

- unfair dismissal

- redundancy payment

- occupational sick pay, maternity benefits, access to pension scheme, profit sharing and some bonuses.