The Queens Speech: Agency workers |
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| Management | |
| Written by Rebecca Fox, Solicitor at Matthew Arnold & Baldwin LLP | |
| Wednesday, 25 November 2009 | |
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"The right to be treated equally with permanent staff on pay, holidays and other basic conditions.” The first consultation period relating to the UK implementation of the Agency Workers Directive closed on 31 July this year. It therefore came as no surprise that the Queen's Speech on 18 November 2009 confirmed that it is the Government's intention to legislate “to provide agency workers with the right to be treated equally with permanent staff on pay, holidays and other basic conditions”. The Government intends to bring the draft Agency Workers Regulations 2010 (the Regulations) into force in October 2011. This will give agencies and hirers sufficient time to adjust, with the help of the guidance provided with the Regulations.The Directive applies to: "workers with a contract of employment or employment relationship with a temporary work agency who are assigned to user undertakings to work temporarily under their supervision and direction." The effect of the Regulations is that all hirers of agency workers will be responsible for providing equal entitlement on pay, holiday entitlement and all other basic working conditions after 12 weeks in a given role. The time that counts toward the qualifying period of 12 weeks will be broken if the agency worker commences a new assignment with the same hirer (whether through the same or different temporary work agency) which involves "substantively different work or duties" to the preceding assignment. This provision is intended to prevent abuse, as the agency worker cannot simply be switched between roles in the context of the same contract with the agency as the new assignment should be "substantively different" to the previous one. Guidance will be provided with the Regulations to define what constitutes a “substantively different role.” Agency workers will also benefit from information about vacancies within the company or organisation to give them the same opportunity as other workers, to find permanent employment. There will be a positive duty on all hirers of agency workers with information about vacant posts and a duty to provide information on vocational training to the agency worker. In addition, agency workers will enjoy equal access to onsite facilities such as childcare and improved rights to improve the health and safety of expectant mothers, such as the right to reasonable time off for ante-natal appointments. The temporary work agency will be responsible for any breaches of rights in relation to agency worker’s basic working and employment conditions to the extent that it is responsible for the infringement. However, it will have a defence based on the fact that information supplied by the hirer, and which has been reasonably relied upon, has proven to be inaccurate or incomplete. At present, no proposals have been made as to the nature of the enquiries an employment business must make of the hirer to be able to rely on this defence. Agency workers will be able to bring tribunal claims, for example, for breach of the rights to equal treatment after the 12-week qualifying period. The time limit for presenting claims to a tribunal will normally be three months from the date of the infringement or detriment. A tribunal will be able to make a declaration, order payment of compensation and make recommendations for action to be taken by the agency or the hirer. Compensation payable by an agency or hirer will be a "just and equitable" amount having regard to the extent of their responsibility. The implementation of such legislation will significantly impact the 1.3 million agency workers in the UK labour market, as well as those hiring such workers. It remains to be seen whether the Regulations will lead to a decline in the number of agency workers engaged by hirers and whether agencies and employment businesses will find practical ways of dealing with the Government’s proposals. Rebecca Fox, Solicitor at Matthew Arnold & Baldwin LLP.
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