Useful slide set on this tricky subject.

1. AGENCY WORKERS REGULATIONS
Webinar with
Alyson Pellowe, Sian Hughes (People Vision)
& Jon Heuvel (Penningtons)

2. • Welcome
• Participant
involvement
• Questions: raise your
‘technological’ hand
• Type in chat box

3. Are you a “Hirer”
or a
“Temporary Worker Agency”
(TWA)?

4. Background and Overview

5. Timing
• EU Directive – deadline for implementation 5 December
2011
• Regulations laid before Parliament 21 January 2010
• Implementation 1 October 2011
• Conservative election manifesto suggested “gold-plating”
to be removed – but ultimately confirmed would go ahead
as planned
• Guidance (final version) 2 June 2011

6. Key principles
Day 1 Access to facilities and vacancies: Hirer (although
Includes canteen & similar facilities, arguable claim
child care & transport services – subject may also be
to objective justification brought against
agency)
Notify vacancies
After 12 Equal treatment as if hired by hirer to do Agency: but
weeks the same job – basic working conditions reasonable
& pay steps defence
Hirer
Other Must provide information to employee Hirer
reps about use of temps on
redundancies, TUPE transfers etc.

7. Who is covered?

8. Which workers
are covered?
Individual supplied
Worker engaged
by agency to work
under contract to
under hirer’s Employee of agency
perform work
direction and
personally
supervision
Not: if genuinely
self-employed – Includes use of Personal Service
operating
profession/business intermediaries Companies?
undertaking

9. Managed service
arrangements
• Agency defined as person engaged in the
business of supplying individuals to work
temporarily for and under the direction and
supervision of hirers
• Probably doesn’t have to be core business
• Genuine managed service where provider
supervises employees – not caught

10. Focus on equal treatment

11. The equal treatment
principle – Reg 5
• Right to same basic working conditions for doing
the same job if had been hired directly by hirer
• Relevant terms: those relating to pay, holiday
and working time
• The terms that are ordinarily included in
contracts of employees/workers of hirer –
whether by collective agreement or otherwise
• Deemed to comply if working under same
relevant terms and conditions as comparable
employee, and on same terms as ordinarily
included in contracts of comparable employees

12. When does the
equal treatment
principle apply?
• After 12 calendar weeks
• Breaks – assignments linked unless at least 6 week break
• Change of role re-starts the clock – if separate & substantively
different duties
• Special rules for holiday, sickness (of up to 28 weeks) etc. during an
assignment – effectively the pre and post periods are linked
• Time spent on maternity leave / paternity leave / pregnancy related
absence – deemed to be working for the original duration
• Pre October 2011 time does not count

13. Anti avoidance
provision
• Where worked for a hirer for 2 + assignments
• Or worked 1 assignment each with hirer and
connected hirer
• Or worked more than 2 roles with hirer
• Deemed to qualify where “most likely
explanation” for structure is avoidance of ETP
• Additional compensation – up to £5,000

14. What is covered
by the equal
treatment right?
Holiday – But can pay
Contractual in lieu of contractual
& WT Regs element
Other working time Overtime
rights – contractual duration of work,
& WT Regs night work,
rest periods
& breaks
Pay

15. What is meant
by pay?
Any sums As if had Not a term
payable by been by
hirer under employee (or term
contract or worker) of comparison?
otherwise hirer
And vouchers
with monetary
Most cash value
But not …
payments exchangeable for
goods/cash/
services

16. What is NOT
included in pay?
Sick/maternity/ Pension,
Redundancy retirement
paternity/
pay payments
adoption pay
Payments for Some statutory
loss Benefits in kind payments (e.g. time
of office off for union duties)
Distribution of
“Financial shares, options or
Loans participation share of profits in
schemes” cash/shares

17. Bonuses – when
are they covered?
A Bonus, incentive or reward “not directly Not
attributable to amount/quality of work… covered
given for a reason other than
amount/quality of work”
e.g. encouraging loyalty/reward long
service
B Would not be payable if had been an Not
employee of hirer e.g. leavers covered
C Bonuses linked to amount or quality of Yes
work – piecework, sales bonus, some
performance bonuses

18. Mixed bonuses
- Truly discretionary: not covered at all
- BUT: most are not entirely discretionary?
- Mix of company and individual
performance and retention – does it fall
into the exemption:
- not attributable to the amount or quality of
work AND given for another reason other than
amount/quality

19. Pay: the permanent
contract exclusion
• Agency pays minimum pay between assignments: at
least 50%
• Permanent written contract before assignment began
covering pay, hours, locations & nature of work and fact
that individual won’t have equal treatment rights
• Agency looks for work between assignments & offers to
hirers with suitable roles
• Agency cannot terminate until complied with
requirement to pay & look for work for aggregate of 4
weeks

20. Making the comparison

21. Who is the worker
compared to?
- Focus of the comparison is on: what conditions would
apply if worker had been hired by the hirer to do the
same job:
- The terms that are ordinarily included in contracts of
employment of the hirer – any standard approach to pay and
conditions in contracts, collective agreements
- If comparable worker is paid the same, and is on terms
ordinarily applied to comparable workers, that is a
complete defence:
- Same or broadly similar work, having regard (where relevant)
to qualifications and skills
- At the same establishment (or another if no one comparable
at that establishment)

22. What is
comparable
treatment?
If employer has Pay at appropriate point
standard pay scale/ of scale/at going rate,
structure or there taking account of experience
is a “going rate”

23. What is
comparable
treatment?
No need
No pay scales to match
or going rate or
pay.
comparable
employee/worker
But may
Pay always need to
individually match
negotiated, & no holiday if
custom & practice that is
standard

24. Rights of access

25. Day 1: Access to
collective facilities
and amenities
Canteen Childcare Transport Other?
Objective Justification
Guidance

26. Access to
vacancies
- Right to be notified – “to give same opportunity to find
employment”
- Includes internal vacancies that are never advertised
externally – if a comparable worker would have been
made aware
- Can use normal routes e.g. intranet/notice board – if that
is how a comparable worker would have found out
- Right to know about the vacancy
- Not a separate right to be considered?
- Guidance to be issued on restructuring/headcount freeze

27. Enforcement

28. Right to receive
information
– Reg 16
- After 12 weeks on job, worker can make request to agency
for statement of hirer’s basic employment conditions and
terms, and how comparator was determined
- Information to be provided within 28 days
- If not received within 30 days, can be requested directly
from hirer
- Similar right to request information from hirer from Day One
in relation to job vacancies information/facilities
- Tribunal has right to draw inferences
- Can also proceed directly to Tribunal claim – no penalty

29. Liability and
enforcement
– Reg 14
- Reg 5: Agency and hirer can be liable to the
extent each is responsible
- Agency has reasonable steps defence
- 3 month time limits and just & equitable
extension
- Just and equitable compensation, taking into
account any loss (2 week minimum for Reg 5)

30. Enforcement
- Power to make recommendations
- 3 months time limit
- Rules on calculating the relevant date
- Detriment/unfair dismissal protection for workers
who have raised/enforced their Regulation rights

31. Impact on employment status

32. Greater
integration?
- Access to facilities
- Assessment of performance related bonus/pay?

33. Round-up

34. Maternity and
ante-natal care
Time off for ante-natal care
Right to be offered alternative if
suspended on maternity grounds

35. Practical preparation
√ Audit current use of temps and the cost. How do their terms
compare in practice – will you be able to rely on the deemed
comparator?
√ What mechanism/process would you apply to decide
who is comparable/what terms would be if hired directly?
Control over business use of temps – role for agency?
√ Defining bonus – in or out? If it could be covered, how
will it be assessed in practice?
√ Other pay & allowances? Performance related salary
reviews?
√ Is it feasible to rely on permanent contract exclusion?

36. Practical preparation
√ System for providing information to agencies: what will
agency expectations be?
√ Control over agency responses to workers?
√ What facilities are covered? Do you give access anyway?
√ Access to information re vacancies – how are these posted,
and are there any that aren’t? Are there any groups of
workers without intranet access?
√ Capturing information for employee consultation
√ Review existing agency terms

37. “Participant
Question Time”
 Use the ‘hands-up button to
alert me to your question
 Be sure to have a working
microphone so that we can
hear you
 Don’t want to talk? then
simply type a question into
the chat box and I will ask
this on your behalf

38. Future PVHR
Webinars
• We now run webinars on a range of different
subjects
• Write to me if you would like more details
alyson.pellowe@pvhr.com
• Thank you for participating and ….

39. Thank you to our guest
speaker – Sian Hughes - Jon
If you run webinars and want to learn how to create the most
effective ‘voice’ for this kind of online activity for yourself, then
perhaps some vocal coaching
and guidance might be of use?
Contact :
webinars@UListen2.TV
UListen2.TV

40. “Thank-you for participating, we look
forward to your feedback!”
www.pvhr-recruitment.com www.pvhr.com 0845 459 9710