Guide to TEMPORAY AGENCY WORKERS RIGHTS

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1 Davies and Partners Slicitrs Guide t TEMPORAY AGENCY WORKERS RIGHTS Latham Huse 135 Aztec West Rwan Huse 57 Queen Anne Street Paradise Street Almndsbury Barnett Way Lndn Birmingham Bristl Barnwd W1G 9JR B1 2AJ BS32 4UB Glucester Tel: Tel: Tel: GL4 3RT Fax: Fax: Fax: Tel: Fax:

2 What are agency wrkers? An agency wrker is usually signed up t an agency r emplyment business. The agency wrker is then supplied by the agency t wrk fr ne r mre f its clients. The agency wrker is ften nly assigned t the client n a temprary basis fr either a fixed perid r specific prject. Hwever, this is nt always n a shrt term basis. This guide is lk at the rights f temprary agency wrkers. A temprary agency wrker is defined as an individual wh: is supplied by a temprary wrk agency, t wrk temprarily fr and under supervisin and directin f a hirer; and has a cntract f emplyment r ther cntract t perfrm wrk and services persnally with the temprary wrk agency What rights d temprary agency wrkers have? The Agency Wrkers Regulatins 2010 ( Regulatins ) came int frce n 01 Octber These regulatins prvide basic prtectins fr temprary agency wrkers. They were intrduced t give effect t the EU Temprary Wrkers Directive. When d the Rights under the Regulatins apply? Agency wrkers have access t varius rights under the regulatins which are available in tw stages. Frm day ne the agency wrker is entitled t: a) the right t access cllective facilities and amenities fr example staff canteen; childcare facilities and the prvisin f transprt facilities; and b) t be infrmed f any vacancies at the client during the assignment; After a 12 week qualifying perid they will have the right t the same basic wrking and emplyment cnditins as equivalent permanent staff. These relate t pay, wrking time, night wrk, rest perids and rest breaks and annual leave. What is included in Pay? The guidelines which were published alngside the Regulatins state that the fllwing shuld be cnsidered as pay: 1) basic pay based n the annual salary the Wrker wuld have received if directly recruited including where applicable annual pay increments;

3 2) vertime pay based n the hurs wrked ver and abve cntracted hurs; 3) shift r unscial hurs allwances r risk payments fr hazardus duties; 4) payment fr annual leave; 5) bnuses r cmmissin payments which are directly attributable t the amunt r quality f the wrk dne by the individual; 6) vuchers r stamps with a mnetary value but which are nt prvided thrugh salary sacrifice schemes. The guidelines als state that the fllwing are nt included: 1) ccupatinal sick pay; 2) pensins; 3) ccupatinal maternity, paternity r adptin pay; 4) redundancy pay; 5) ntice pay; 6) payments r rewards linked t financial participatin schemes e.g. share wnership schemes; 7) bnuses nt linked t the individual; 8) discretinary r nn cntractual bnuses; 9) benefits in kind as they tend t be used t reward lyalty and lng service; 10) payments linked t length f service; 11) vertime where agency wrkers haven t met the requirements placed n permanent staff; 12) payment fr time ff n trade unin duties; 13) guarantee payments; 14) advances in pay r lans; 15) expenses.

4 Wrking time and hliday entitlements Agency wrkers have the same entitlements as ther wrkers under the Wrking Time Regulatins. S nce the 12 week qualifying perid has been cmpleted they are entitled t the same terms and cnditins relating t duratin f wrking time, night wrk, rest perids and annual leave etc. S where the cntractual terms are mre generus than under the Wrking Time Regulatins, the agency wrker will be entitled t receive thse entitlements nce qualified. Hw d yu calculate the 12 week qualifying perid? T qualify fr the 12 week rights an agency wrker must wrk in the same rle with the same client fr 12 cntinuus calendar weeks during ne r mre assignments. There are different circumstances which will break the cntinuus cycle and thers which will nt affect the accrual f the 12 week qualifying perid. Fr example an agency wrker wh remains with the hirer but in a substantially different rle will have t start the 12 week qualifying perid again but if there is a break in the same rle fr any reasn which is nt mre than six calendar weeks the qualifying perid is merely paused. What claims can the agency wrker bring? An agency wrker culd make any f the fllwing claims frm day ne: A claim fr autmatic unfair dismissal in the case f agency wrkers wh are emplyees. Such a right arises where they may have been dismissed as a result f fr making allegatins, giving evidence, asserting rights r bringing prceedings under r in cnnectin with the Regulatins. There is n qualifying perid fr this right. The right nt t be subjected t detriment n prescribed grunds. Fr example nt t have been excluded frm the pprtunity t apply fr a permanent rle because they attempted t assert their rights under the Regulatins. Such a claim may be brught against the hirer r the agency. Terminating a cntract fr a prhibited reasn is likely t give rise t detriment claims. Again there is n qualifying perid required. A claim that rights f access t emplyment r facilities have been breached. An agency wrker culd make any f the fllwing claims nce they have passed the 12 week qualifying perid: A claim that the equal treatment rights have been infringed. A claim that the agency r hirer has unreasnably refused a wman paid time ff fr antenatal care.

5 A claim that the agency r hirer has failed t pay the agency wrker remuneratin where the supply f her wrk t a hirer is ended n maternity grunds. The wrker will have three mnths frm the date f the infringement t bring a claim. What remedies are available? Cmpensatin may be payable. The level f cmpensatin will be determined by cnsidering factrs such as the nature f the breach, any financial lss suffered and any expenses they have reasnable incurred as a result. There is n maximum award althugh there is a minimum award f tw weeks pay. Tribunals can als make a declaratin r recmmendatin fr actin t be taken. Wh is liable fr the breach? Fr day ne rights the hirer is slely respnsible fr any breach. Fr the 12 week rights, either the agency r the hirer can be respnsible. The tribunal will determine the level f respnsibility between the tw but if an agency can shw it has taken all reasnable steps t btain the necessary infrmatin frm the hirer and acted reasnably it is likely t have a gd defence. Fr further infrmatin n temprary and/r agency wrkers please cntact us t discuss in mre detail.

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