New rights for agency workers
Recently, various questions regarding the implementation of the Agency Workers Regulations 2010 have been raised. If you do any work through an agency you should read the Q&As below because you may have acquired new rights under the Regulations.
What are the Regulations and do they affect me?
The Regulations provide agency workers with rights that they did not enjoy previously.
From day one you will have certain automatic rights. These include the right to access 'collective facilities and amenities' (i.e. access to canteen, childcare, transport services etc) in the same way as employees, and the right to be told of any job vacancies.
After 12 continuous weeks service you become entitled to the same 'basic working and employment conditions' to those you would have been entitled had you been recruited directly by the hirer to do the same job. Basic working and employment conditions include pay, working time duration, night work, rest periods, rest breaks and annual leave.
To qualify for these new rights you must be an agency worker who is supplied by an agency (a temporary work agency) to work temporarily under the supervision of a third party (the hirer). You must also have a contract of employment with the temporary work agency, or another contract to perform work and services personally.
For example, you are a qualified secretary and have a contract to provide your personal services to Office Surprises (the temporary work agency). Office Surprises then places you into Workharder PLC (the hirer). If you work for Workharder PLC for 12 continuous weeks you are then entitled to the same pay etc as a permanent secretary that Workharder PLC recruited directly to carry out the same job as you.
What happens to my rights if my assignment is ended at 11 weeks but I return to the same assignment after 5 calendar weeks?
You will still obtain the rights above. Continuity of service will only be broken where (1) you start a new assignment with a new hirer; (2) you start a completely different role with the same hirer; or (3) there is a break of more than 6 calendar weeks between assignments with the same hirer.
Generally speaking continuity will be satisfied, for example, even if you are on assignment with the same hirer for one day a week you will still accrue the rights after 12 calendar weeks.
My agency has offered me a Payment Between Assignment (PBA) Contract, what is this?
This is a permanent contract of employment with the agency where you are paid between assignments i.e. during the periods when you are not working. If you are employed through a PBA then even if you have 12 weeks continuous service at a hirer you will not be entitled to the rights outlined above.
For example, you may have a PBA contract where the hourly rate is £10/hour but you work at a hirer where comparable employees are paid £15/hour. Whilst you won’t get paid £15/hour after 12 weeks continuous service at a hirer, if your assignment ends and you enter a period where you don’t work you will be paid £10/hour at a specified level i.e. 20 hours/week.
This type of contract may become more popular because it will provide hirers with a flexible workforce without exposing them to pay parity for agency workers.
What happens if I think there has been a breach of the Regulations?
In the event the Regulations are breached you can make a claim to an Employment Tribunal. You could claim against the agency or the hirer for: a breach of equal treatment (after 12 weeks continuous service), or being dismissed or subjected to a detriment because you tried to assert your rights under the Regulations. In the event that you had not been given access to collective facilities and amenities and job vacancies you could make a claim against the hirer.
If your claim is successful a tribunal can order a declaration, recommendation, or compensation. There is no upper limit to the amount of compensation payable; however there is a minimum award of no less than two weeks salary. There are also instances where an award towards injury to feelings will be made.
This information is general only and not intended to amount to legal advice. If you have concerns about your own situation you should seek advice specific to your circumstances.
Kate Warrington is a solicitor in the employment team at Russell Jones & Walker.
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