The Agency Workers Regulations 2010 (the Regulations) are due to come into force on 1 October 2011. In this item we will highlight some key provisions and their application.

The Regulations will apply to workers provided by temporary work agencies. Broadly, these are agencies which supply individuals to work temporarily for hirers. They will not extend to agencies which find permanent employment for individuals. Agency workers must perform their services personally for the agency, so technically, if a worker’s contract is to supply services for the hirer rather than the agency, they would not be protected. It remains to be seen whether, in their interpretation, the scope of the Regulations will be extended to include such workers.

Once a hirer has established who its relevant temporary agency workers are, it must ensure that these workers are afforded the same basic working conditions as they would have been entitled to had they been doing the same job and recruited directly by the hirer.

In order to establish his rights, an agency worker will, therefore, need to compare his terms and conditions with those of a directly recruited comparator at the hirer’s organisation. It is not clear from the Regulations whether a real or hypothetical comparator should be used, but the prevailing view seems to be that a hypothetical comparator will be permitted. In any case, a hirer will be deemed to have complied with the Regulations if it can identify an actual comparator who is working under the same relevant terms and conditions and those terms and conditions are ordinarily included in comparators’ contracts.

An agency worker protected by the Regulations will not be entitled to equal treatment in respect of all terms and conditions. The relevant terms and conditions covered by the Regulations include pay, the duration of working time, night work, rest periods, rest breaks and annual leave. Pay includes basic pay, overtime pay and bonuses linked to individual performance. Other bonuses, occupational pensions, sick pay and financial participation schemes are among the types of pay that are expressly excluded from the application of the Regulations.

Agency workers do not become eligible for equal treatment immediately. Equal treatment is not required until an agency worker has worked in the same role (whether on one or more assignments), with the same hirer for 12 continuous calendar weeks. Any part of a week will count as a full week. The period of continuity will be broken if the worker begins a new assignment that is substantively different from the work previously undertaken. A break of at least six calendar weeks will also break the period of continuity. Certain periods of absence, such as for sickness or statutory or contractual leave, will only suspend the period of continuity. When continuity is suspended, it will neither continue to accrue nor be broken. Continuity will continue to accrue during weeks of absence for pregnancy, childbirth or maternity.

The Regulations also contain anti-abuse provisions to prevent a hirer from contriving to structure agency workers’ assignments in such a way as to avoid the workers acquiring rights. If a tribunal finds that an agency or hirer has taken such measures, it may make an additional award to a worker of up to £5,000.

Certain rights are acquired by agency workers immediately from the start of their assignment, i.e. before they satisfy their period of continuity. These include being informed about any relevant vacancies at the hirer during the period of the assignment and being given access to the same collective facilities and amenities, such as a canteen, child-care facilities or the provision of transport.

The temporary work agency and the hirer will each be liable for any breach of rights in relation to an agency worker’s basic working and employment conditions to the extent that it is responsible for the infringement. Agency and hirer are not jointly and severally liable. The agency will have a defence if it can show that it took reasonable steps to obtain relevant information from the hirer about its basic working and employment conditions and, having done so, acted reasonably in determining the worker’s conditions. Although not explicitly required to do so by the Regulations, hirers should provide a temporary work agency with all relevant information about the agency worker’s basic working and employment conditions.