1 Employment Law

Introduction

The Agency Workers Regulations 2010 came into force on 1 October 2011 as an implementation of the European Union Directive 2008/104/EC on Temporary Agency Work. This statute gave rise to sweeping changes on how agency workers were to be handled. The regulations are applied to workers sourced to firms from temporary work agencies and the regulations give the agency workers various additional rights.

These changes provide a fundamental shift in the Employment Law in the United Kingdom.  Specifically, the provisions for handling temporary workers have been changed and other considerations previously not in law have now been codified. These changes will have a great impact in the operations of human resource departments in organization. It is therefore critical that firms and organizations should acquaint themselves with the provisions of the spirit as the stipulations imply to avoid litigation.

Sexual discrimination is one of the institutionalized vices that has dogged the working place. However, with the passing of the anti sex discrimination statute, the situation has since changed. According to the statute, no employee should be subjected to unfair treatment. Even in the case of a male employee, the statute outlines the course of action to be taken. The statute stipulates that no employee would be granted special attention in terms of sex. The exception comes in the case of women in view of pregnancy and childbirth.

A case example of the anti sex discrimination state is the case of Eversheds who appealed to the Employment Appeal Tribunal where he was awarded 100,000 pounds in compensation. The case of Eversheds was that his employer exhibited unfair favoritism towards female employees which worked against him.

Under the Agency Workers Regulations 2010, an agency worker is obliged to offer services to the agency, but whose services benefit a third party firm which has a contract with the agency. The definition of agency worker has been subject to intense debate and academic authorities are divided on which particular cadre of agency staff qualifies to be considered under this statute (Howard 2011). He further argues that such a definition as provided for in the statute may as well include workers who are providing services under a master services agreement such as cleaners.

Another stipulation which protects the right of the employee is the TUPE regulation. Under the regulation, an employee working for a business or other premises is protected by law from unfair dismissals even on acquisitions.  Under the stipulations, an employee can only be dismissed under technical or economical conditions. A case example of this stipulation was the Spaceright Europe Ltd v Baillavoine & Anor. Mr. Baillvoine was wrongfully dismissed from work and he was subsequently compensated. 

The question of who is actually an agency worker is debatable. Before arriving at a conclusion that one is an agency worker, considerations should be made in reference to the working arrangements. There are avenues for shortchanging the system through the use of umbrella corporate bodies to act for and on behalf of the hirer (Harvard Law Review, 2012). In this scenario, the umbrella corporate handles all the human resource issues fro other companies including paying dues.

One of the rights that apply ab initio is the right to be given access to the same collective facilities as comparable employees or workers of the hirer. The implication of this right is that the hirer has to ensure that the agency works have equal access to the company’s resources as the permanent staff. Significantly, this will mean that the Human Resource department will have to put in place mechanisms that identify all the workers of the company including agency workers on an equal basis.

The other right that applies right from the start of the workers’ assignment is the right to be informed of any arising vacancies by the hirer as comparable staff would be informed. This means that the employees are under legal obligation to give the agency workers preferential treatment in informing them of arising vacancies as they would do for the permanent workers of the company. Along this line, the issue of defining “comparable worker” is also a subject of debate. However, it is envisioned under this statute that if there are no broadly comparable employees, this rights will not apply.

The twelve week qualifying period is also a potentially game changing provision that has far reaching implications on the human resources operations fro companies. The regulation stipulates that if a worker accrues twelve continuous months in the same assignment in the same company, then the worker becomes entitled to the same terms and conditions he or she would have entitled to if directly recruited by the hirer.

This report aims to discuss the impact of the changes in Agency Worker Regulations 2010 in the human resource department.

The Qualifying Period

The right to equal treatment in respect to terms and conditions can only apply if the agency worker works in the same role for a hire for twelve continuous weeks. Working in the same role is an important factor in considering the twelve week period because any change in roles may render the previous work period obsolete. However, before an agency changes the role of a worker, it is a requirement by the regulations that the worker should be notified on the new role. According to the regulations, a break between assignments of less those six weeks shall not affect the continuity of the twelve week qualification process. The regulations further make provisions for breaks that exceed six weeks such as sickness, pregnancy or maternity and other statutory recognized breaks.

The regulations also provide for mechanisms to prevent devious agencies from preventing agency workers from qualifying for equal treatment. Some agencies may structure assignments in such a way that makes it difficult for the agency worker to meet the threshold for qualifying fro equal treatment. If a worker has completed more than two assignments with the hirer or the agency work has held more than two roles with same hirer, then he or she can seek redress from the employment tribunal. If the tribunal finds that there was a deliberate attempt to frustrate the worker from qualifying for equal treatment, the agency can be fined up to five thousand pounds while the affected worker would be considered qualified for equal treatment.

These provisions imply that the human resource department at the agency and the hirer should be keen to observe the twelve week qualifying period for agency workers. A hirer should be aware of the cost implications of equal treatment from agency workers and if the hirer is not in a position to cater fro the equal treatment, then proper arrangements are to be set out to outline workers who are not entitled for the treatment to be notified. However, this is should be done in tandem with the stipulations in the law with the objective of avoiding penalties for frustrating an agency worker from qualifying for equal treatment.

Establishing Equal Treatment

 The equal treatment envisioned under the Agency Workers Regulations 2010 extends to basic working conditions. Specifically, the elements of pay holiday entitlement and the number of working hours are the issues considered in evaluating equal treatment under the Regulations. Thus the equal treatment under this statute is different from those of anti-discrimination that are under the employment legislation. Under the existing employment legislation, the equal treatment provisions are extensive and have a wide application. Therefore, the regulations are a bit relaxed in comparison to the provisions of the anti discrimination requirements in the employment legislation.

Secondly, the test of equal treatment under the Regulations draws no comparison in the treatment of an agency worker and an actual ‘comparator’. Instead, a qualified agency worker will under the Regulations have stipulated entitlements by the hirer on the first day of assignment other than through a temporary work agency to carry out the same job. This means that the regulations do not require or create an issue of comparable worker to whom the equal treatment will be based upon (Sargeant & Lewis, 2008). In retrospect, a hirer has a lee way to introduce the terms and conditions that would have been in place had it hired the agency worker directly.

The issue of establishing a “comparator” is debatable depending on the perspective that the hirer takes. For instance, the “ comparator position may only be possible if the person was hired on a permanent basis from the first day therefore the terms and conditions might not be necessarily applicable in the case of the agency worker. The hypothetical question that needs to be answered is what terms would the agency worker be accorded in view of doing the same job. The case is more straightforward if there is a position in the hirer’s company that is directly related to that of the agency worker.

The regulations also stipulate that once an agency worker has qualified for equal treatment, he or she will continue to be entitled fro equal treatment for the remaining duration of the assignment and in other subsequent assignments as long as the six week discontinuity allowance is not lawfully exceeded. The ongoing entitlement means that if the terms of equal treatment are improved, the agency worker is also entitled to the improved benefits.

However, the right to equal treatment regarding pay may be waived in cases where the agency guarantees a form of permanency. The ‘Swedish derogation’ allows derogation from the right of equal treatment with respect to pay. Agency workers who are permanently employed by their agency and who are guaranteed at least fifty percent of their basic pay in any week even when the agency cannot find work for them are not entitled to the provisions of equal treatment. The rights relating to the working hours and entitlement to holidays still apply irrespective of the permanency of the job of the agency worker. The restriction that an agency may not terminate a contract to an agency employee without at least giving him or her benefit of salary for four weeks without work gives a huge financial liability to the company.

Agency Workers’ Rights of Access to Facilities and Amenities

From the first day of the assignment, agency workers are entitled to access facilities and amenities. The agency workers are not supposed to receive less favorable treatment compared to comparable direct employee in terms of access to the hirer’s facilities and amenities. This is a fundamental right under the statute and it should be implemented from the first day.

According to the Regulations, the expression ‘collective facilities and amenities’ is not defined but the listed examples are transport facilities, canteens and childcare facilities. In the letter and the spirit of the law, it is not expected that discretionary facilities and amenities will fall into the scope of this Regulations. For instance, the agency worker may not be necessarily entitled to membership into the hirer’s on-site gym. This is because the facility is not ordinarily related to the execution of the day to day duties of the agency worker.

The regulations are also restrictive especially in considering transport service. The hirer is not expected to carter for season ticket loans and company car allowances.  Such services are considered to be discretionary offers and therefore do not merit to be considered as part of equal treatment. Also, the provision of these services is basically under a permanent employee package and hence not under consideration fro equal treatment.

A right to be treated equally in terms of access to facilities and amenities is not to be taken as a right to absolute access. For example the access to parking space although part of equal treatment, is subject to “first come first serve basis”. It would not be deemed to be a breach of equal treatment if an agency worker misses a parking space if they miss parking space when they come late to job. The same applies for issues where a worker is required to be on a waiting list before they receive the benefit.

The hirer has a right to lodge an objective justification concerning provision of equal access to facilities and amenities. It is not unlawful for a hirer to fail to offer equal access to facilities if the hirer can objectively justify the reason for not offering the facility or amenity. The laws governing rights of part-timers and fixed term workers are the basis for the test of justification.

Recommendations

The paper focused on exploring the impact of the new Agency Workers Regulations 2010 and their impact on the human resource management in relation to the existing Employment legislation. Because the right of access to facilities and amenities is immediate, hires need to analyze the potential impact this may have on their organizations. Hirers also need to identify all the facilities and amenities that may fall into this category since the list provided in the Regulations is not exhaustive. This will help to put the hirers in a good position to estimate the impact the regulations may have in the company.

From the analysis, it is also evident that agency workers may opt to lodge legal challenges concerning their qualification to be considered for equal treatment. This might arise where the agency workers have undertaken periodic assignments and the cumulative time span may add up to twelve weeks. Hence, hirers need to do a careful analysis of the pattern and duration of the assignments that it offers. Further, the hirers need to work closely with the agencies to ensure that their engagement with agency workers is within the law. The periodicity and nature of assignments should be communicated to the agency workers according to the prescribed manner (Mamorsky, 2001).

The other recommendation is that the hirers need to put in place structures that define the entitlements of employees at various levels in the corporate ladder. This is important so that it becomes easy when defining the comparable employee factor in respect to equal treatment. It is also critical that hirers should do sufficient research to determine whether it is more cost effective to employ temporary staff than to source them from employment agencies.

Conclusions

It is evident that these changes in agency workers regulation will change the way human resource departments handle the agency workers. Compliance to these regulations will need a closer relationship between the agencies and hirers. This may entail revealing of sensitive information in order to ensure that no information is overlooked that may be in contravention of the statute.

The implementation of these regulations may result in increase in costs of supplying the services of agency workers. The impact of the rise in costs may have undesirable effects like transfer of costs to the consumers and this may harm business in the long run. It is advisable that agencies and hirers should build cooperation between themselves in order to ensure compliance. 

Bibliography

Cabrielli, D. 2011. Law Express: Employment Law. New York: Pearson Publishers.

MAMORSKY, J. D. (2001). Health care benefits law. New York, Law Journal Press.

SARGEANT, M., & LEWIS, D. (2008). Employment law. Harlow, Longman.