Following consultations in 2009, the regulations implementing the EU Temporary Agency Workers Directive, the Agency Workers Regulations 2010 (the “Regulations”), have been laid before Parliament. The Regulations are due to come into force on 1 October 2011.
The draft Regulations have been amended from those published in October last year as a result of the consultations.
The central right under the new Regulations is for temporary workers who are contracted by an employment agency but work under the control of the hirer to receive the same basic working and employment conditions as comparable employees in the hirer’s organisation after a 12 week qualifying period.
On completion of the 12 week qualifying period agency workers must receive equal treatment in relation to:
- duration of working time;
- right to work;
- rest periods;
- rest breaks; and
- annual leave.
“Pay” includes salary, fees, bonuses and commission but excludes pension, occupational sick pay, maternity and paternity pay, redundancy pay, financial participation schemes such as share options and bonuses and incentives which are not directly attributable to individual performance.
Ordinarily a break of 6 weeks between work assignments for one hirer will be sufficient to “re-set the clock” on the 12 week qualifying period, however certain absences, for example due to ill health, maternity or temporary cessation of work at the hirer will be treated as suspending the qualifying period. Periods before and after such absence that meet specified criteria will be added together for the purposes of the qualifying period.
Extensive anti-avoidance provisions in the Regulations are designed to prevent agencies and hirers artificially constructing assignments to defeat the 12 week qualifying period and tribunals can award individuals additional compensation of up to £5,000 in the event that anti-avoidance rules are breached.
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For further information or to discuss the issues raised, please contact Colina Greenway (email@example.com) on +44 (0) 203 051 5711.