12 week qualifying period
The agency worker will be entitled to access the hirer's employment and collective facilities and to receive notice of job vacancies from day one. The right to equal treatment in respect of terms and conditions will only be triggered after the worker has completed 12 calendar weeks' service with the hirer in the same role. Whilst reference is made to calendar weeks, any week in which work is carried out will count, regardless of the number of days or hours actually worked in that particular week.
Ordinarily, the 12 weeks' service must be continuous. There was, however, concern that this provision would be utilised to circumvent the regulations with breaks between assignments. Therefore, there are provisions that if the agency worker starts a new assignment in the same role within six weeks, the clock will restart where it left off. If the gap is longer than six weeks, the 12 week qualifying period will normally start again from scratch. Even then, however, it is not straightforward as there are exemptions for breaks due to annual leave, sickness absence, absence related to maternity and the other various types of statutory leave. In these situations the clock may well be 'paused'.
As stated above, the 12 week qualifying period only applies when the agency worker is hired in the 'same role'. However, superficial changes to a worker's role are unlikely to restart the clock and a new assignment would need to comprise substantially different work or duties to trigger a new qualifying period. We still await guidance on what 'substantive' will mean in practice.
The rights of agency workers upon completion of the 12 week qualifying period
It is intended that an agency worker will be entitled to the same basic employment conditions as if he/she had been recruited directly by the hirer, whether as an employee or a worker. When comparing his or her terms, an agency worker has to identify other employees or workers of the hirer working in 'the same' or 'broadly similar' roles, although not necessarily in the same office or establishment.
Identifying the same 'basic working conditions' may sound fairly simple but much of the focus has been on how 'pay' would be defined. The draft regulations have adopted the statutory definition of 'wages' contained within The Employment Rights Act 1996 but then made a number of exemptions. Pay will include any fee, bonus, commission, holiday pay or other emolument referable to the assignment (contractual or otherwise) including overtime, shift allowances and bonuses where they relate to personal and individual performance. However, pay will not include:
bonus payments payable through share option schemes or profit share arrangements and those
awarded in the context of a performance appraisal pay system aimed at 'the long term
- management, motivation and retention of staff';
- redundancy pay;
- contractual sick pay, pension, maternity pay, paternity and adoption pay;
- expenses, loans, guarantee payments and paid time off for trade union duties and other paid
time off rights.
It is likely that the issue of when a bonus is or is not 'directly attributable to the amount or quality of the work done by the worker' will be a difficult one to apply in practice and will lead to a number of claims. Also, benefits in kind are excluded but vouchers (such as luncheon vouchers) are included. Whilst some of these issues are likely to be clarified in future guidance notes, the cautious option for hirers will probably be to include agency workers or, more drastically, remove certain benefits from existing workers/employees.
It should also be noted that from day one an agency worker will have the right to access collective facilities such as canteens, crèches and transport.
Primary liability will rest with the agency supplying the agency worker. However, they will have a defence where they can show that they acted reasonably having taken 'reasonable steps' to obtain from the hirer the information required to ensure equal treatment of an agency worker upon the qualifying 12 week period. In those circumstances liability would then switch to the hirer and the tribunal may well apportion liability between the two. Therefore, in practice, claims are likely to be made against both for tactical reasons.
Liability to the agency worker in relation to access to employment and collective facilities will be the sole responsibility of the hirer, as the agency plays no role in their provision.
A claim by an agency worker will be to the employment tribunal for equal treatment and/or being subject to a detriment for asserting their rights under the regulations. As usual the tribunal may award compensation, make a declaration setting out the agency worker's rights and/or recommend that the hirer takes certain action to remove the adverse effect on the agency worker(s).