The government publishes amendments to the Agency Workers Regulations 2010.
The recently published Agency Workers (Amendment) Regulations 2011 amend certain drafting errors in the Agency Workers Regulations 2010. The Regulations correct drafting errors in the definition of agency worker, the “Swedish derogation”, and the provision governing the liability of the temporary work agency and hirer for breach of the agency worker's right to equal treatment.
The amending Regulations change the definition of agency worker in Regulation 3(1) from someone who has a contract of employment or “any other contract to perform work and services personally for the agency” to “any other contract with the agency to perform work or services personally”.
The “Swedish derogation”
The “Swedish derogation” (named as such because Sweden requested the inclusion of the provision in the EU Temporary Agency Workers Directive) disapplies the principle of equal treatment where an agency offers a worker a permanent contract of employment that will afford him pay between assignments. The definition of such a contract is found at Regulation 10. The amending Regulations alter Regulation 10 to clarify that the rules stipulating how the contract must be performed (including the obligation to find suitable work and pay for agency workers who are not working but are available for work), apply only after the end of the first assignment.
The “reasonable steps” defence
The amending Regulations make alterations to Regulation 14 to clarify that the “reasonable steps” defence to a claim for breach of equal treatment in basic working and employment conditions, is only available to temporary work agencies. The previous drafting suggested that a hirer could also rely on the defence.
The amending Regulations represent welcome clarification for hirers and temporary work agencies. The revised definition of “agency worker” allows for a greater number of individuals to fall within the definition, as it removes text which excluded many whose contract with the temporary work agency was to perform work and services for the hirer. The amendments to Regulation 10 and 14 remove the existing doubt as to their timing and application.