The draft Agency Workers Regulations 2010 (AWR/Regulation) have now been published by the government. They are set to increase employment rights for up to 1.3 million agency workers.
The draft Agency Workers Regulations 2010
The draft regulations cover Agency workers supplied by a temporary work agency to a hirer, including those commonly referred to as temps. It also includes agency workers supplied via intermediaries to reduce the scope for sham avoidance arrangements.
However, the intention is to exclude from the regulations the genuinely self-employed, those working through their own limited liability company, and those working on managed service contracts.
From day one of an assignment, an agency worker will be entitled to the same access to canteen and similar facilities, childcare and transport services as a comparable employee of the hirer, unless there is objective justification to deny such access. The agency worker will also have the right to be informed about job vacancies.
After a 12-week qualifying period, an agency worker will be entitled to the same basic working and employment conditions as if he/she had been directly employed by the hirer on day one of the assignment. This includes pay as defined (see below) and working time rights enhanced by the hirer – for example, more generous holiday entitlement. The government had stated that it will be possible to "pay in lieu" holidays above the working time minimum.
Rights of agency workers in relation to basic terms and conditions
After a 120-week qualifying period, an agency worker will be entitled to the same basic working and employment conditions, including pay, as if he/she had been directly employed by the hirer on day one of the assignment.
The definition of pay includes any fee, bonus, commission, holiday pay or other emolument referable to the assignment (contractual or otherwise), but it is subject to a number of exclusions.
For example, it does not include some bonus payments payable through share option schemes or profit-share, and those awarded in the context of a performance appraisal system aimed at "the long-term management, motivation and retention of staff". Other exclusions include redundancy pay, contractual sick pay, and maternity, paternity or adoption pay.
Timetable to implementation
The Agency Worker Directive must be implemented by 5 December 2011
The government intends to delay the implementation until 1 October 2011. Such a delay opens up the possibility of further change, should the Conservatives win the next general election
However, it is unlikely that the final legislation will differ greatly from that now proposed. Although a Conservative government is unlikely to favour this legislation, given that the key terms of the directive are "non-negotiable", there is little flexibility to change materially the current proposals.