Over the past 3 weeks, I have taken on four separate claims for Agency Workers who have not received equal treatment from their Agency/Hirer, because they have been receiving a lesser hourly rate than their Hirer’s permanent staff.
In the circumstances, I thought it would be helpful, to set out in detail, an Agency Worker’s rights and what some Hirer’s are doing to get around the legislation.
Years of campaigning by trade unions, has resulted in Agency Workers being given a number of equal treatment rights – most of which apply after a 12 week qualifying period.
These rights are set out in the Agency Workers Directive which came in on 5 December 2011 - the Agency Worker Regulations brought the Directive into force in the UK on 1 October 2011.
Basic terms and conditions
After an agency worker has been in the same job with the same hirer for 12 weeks, they will be entitled to receive the same basic terms and conditions as if they had been recruited directly.
• basic pay, including holiday pay, overtime and bonuses
• the hirer complying with the Working Time Regulations so that the agency worker does not work more hours than their permanent colleagues • annual leave (if the hirer gives its permanent employees more holiday than the statutory minimum then the agency worker can receive instead of additional leave a higher hourly rate or an additional payment at the end of their assignment) • night work • rest breaks and rest periods • paid time off for ante-natal appointments However, equal treatment on pay can be avoided if the agency worker is offered a permanent contract from the agency and they agree to be paid between the assignments.
What is included in “pay?”
After the agency worker has reached the 12-week qualifying period, the following payments are included in “pay”:
• basic pay based on the annual salary that the agency worker would have received if they had been recruited directly • overtime, bonus or commission payments • annual leave entitlement
• bonus or commission payments • voucher or stamps (e.g. luncheon vouchers, child care vouchers). However, salary sacrifice schemes are not included • paid time off for ante-natal appointments • automatic pension enrolment What is excluded from “pay?”
The following are excluded from “pay?”:
• occupational schemes – sick pay, maternity, paternity and adoption pay • notice pay and redundancy
• a payment for time off to carry out trade union duties • guarantee payments that permanent staff would receive if they are laid off • any advances in pay (for example, a season ticket travel loan or a car loan) • payments or rewards linked to financial participation schemes (for example share ownership) • a significant amount of benefits in kind (for example reduced-rate mortgages, allowances for employer-funded training (but not including those which have monetary referred to in the list above) Please note that if the agency has issued the agency worker with a contract of employment with their agency, then the agency will have to provide some of these payments, instead of the (it is recommended that the agency worker checks to see what kind of contract they have been issued).
Working time entitlements
An agency worker is also entitled to equal treatment after 12 weeks in the same job about:
• working time • night work • rest periods and rest breaks • annual leave (where this is above the legal entitlement of 5.6 weeks) Agency/Hirer’s avoidance
There have been reports that some Agencies and/or Hirers have taken a number of steps to avoid these equal treatment rights.
• Some Agency Workers have been moved by their Agencies, just before the 12 week qualifying period, to avoid them qualifying. • Some Hirers have terminated Agency Worker’s assignments just before the 12 week qualifying period, to avoid them qualifying. Clearly, this is not in the spirit of the directive but unfortunately the guidance confirms that the Hirer can this as a matter of policy. • Some Hirers are using an Agency’s desire to receive continued business from them, to manipulate them into agreeing to only supply them Agency Workers who they pay between assignments and thus avoid their qualifying for the equal treatment rights (please see above) – this is commonly known as the 'Swedish derogation'.
Whether you are an employee or an employer, the employment law department at Wildings can offer you help and advice. If you have any queries regarding this or any other matter, then please do not hesitate to contact us on 0330 3338797