New Rights For Agency Workers
New rights for agency workers now apply from 1st October 2011, when the Agency Workers Regulations 2010 came into force. These regulations were brought in to comply with European law (the European Temporary Agency Workers Directive 2008/104/EC). Their aim is to ensure that agency workers are treated equally to other staff recruited directly by the hirer.
The New Rights
Agency workers with at least 12 weeks qualifying service with a "temporary work agency" ("TWA") working for the hirer have the right to the same basic working conditions as if they had been recruited directly by the hirer. This includes, for example, terms about working time, rest periods and pay, although there are several exclusions as to what constitutes pay under the Regulations eg some bonus and sick payments are excluded.
In addition, from day one, hirers must ensure that agency workers have access to the hirer’s collective facilities such as catering, child care facilities and transport and to information about the hirer’s job vacancies.
Who Can Claim?
The rights apply to agency workers:
- employed by the TWA or who have a contract with the TWA to perform work or services personally, and
- who have been supplied by the TWA to work temporarily for and under the supervision and direction of the hirer.
Workers who are employed on a temporary basis directly by a hirer cannot claim under these regulations because they are not employed by or performing work or services personally for the TWA but they may have a claim under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The position of workers who find work through a TWA but who only have a contract to perform services with a separate “umbrella” company is uncertain. They would appear to be excluded from the scope of the Regulations but the Guidance on the Regulations provided by the Government (which is not in itself legally enforceable) suggest they may be able to claim.
What the Agency Worker has to Prove to Succeed Against a TWA
To enforce the right to the same basic employment terms and conditions the agency worker can claim in an employment tribunal against the TWA. The agency worker would need to prove their terms and conditions were less favourable than another person who is a non agency employee or worker recruited directly by the hirer (ie not another agency worker), and
- who works for and under the supervision of the hirer, and
- is engaged in the same or broadly similar work as the agency worker, and
- is based at the same establishment as the agency worker (or, if no individual is based at the same establishment the other person works or is based at a different establishment and satisfies all the other requirements), and
- (if relevant) has a similar level of qualifications or skills to the agency worker.
Defences and when the Hirer can be Liable
The TWA has a defence if it can show that it took all reasonable steps to obtain information from the hirer about its terms and conditions and then treated the worker accordingly. If this defence of the TWA is successful the agency worker may be able to pursue a claim against the hirer so agency workers will in many cases be advised to join both the TWA and the hirer into the claim.
An agency worker can claim directly against the hirer if they have not been given the same access to facilities or information about vacancies. The hirer will have a defence only if they can show the less favourable treatment can be objectively justified by the hirer. Although cost may be a factor taken into account by a hirer in justifying less favourable treatment of agency workers it is uncertain whether they will be able to rely on cost alone as justification without any other reason. If a hirer cannot offer the agency worker full access to facilities, the Guidance recommends access be granted to some facilities, rather than excluding them altogether.
The time limit for an agency worker bringing a claim in the Employment Tribunal in normal circumstances is three months from the date when the agency worker’s rights under the Regulations were breached.
If an agency worker is successful in their claim, the Tribunal may make a declaration, order payment of compensation to the agency worker and/or make recommendations for the hirer or TWA to take reasonable steps to reduce the adverse effect on the agency workers of any matter to which the complaint relates.
Other Possible Claims an Agency Worker Can Make
If the worker has a contract directly with the hirer they will have all the usual employment rights against the hirer provided they meet the relevant test of being an employee of the hirer or a worker, as applicable.
If the worker’s contract is with the TWA, as well as any rights as an employee or a worker of the TWA, they may also be able to claim discrimination, harassment and victimisation against the hirer if they are contract workers under Section 41 of the Equality Act. This also applies to the duty to make reasonable adjustment in disability cases. A "contract worker" is an individual supplied by someone who has a contract to supply the worker to someone else.
If the agency worker is found to be an employee of or a worker for the TWA they may be able to claim against the TWA under Sections 55 and 56 of the Equality Act which give rights to persons seeking work who are discriminated against, harassed or victimised by a person concerned with the provision of an employment service or if they are offered discriminatory terms by that person. Again, this also applies to the duty to make reasonable adjustments in disability discrimination cases.
As will be seen from the above, both agencies supplying agency workers and hirers using agency workers may well have obligations towards agency workers as to the terms and conditions under which they work and the facilities available to them under the Agency Workers Regulations and in relation to discrimination under the Equality Act.
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