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Rights under the Agency Workers Regulations 2010
[ch 2: pages 63-65]Since 1 October 2011, temporary agency workers have additional rights under the Agency Workers Regulations 2010 (AWR 2010). These rights are based on the principle of equality of treatment with comparable direct employees of the hirer and are intended to implement European Union law — the Agency Workers Directive.
The rights available under the AWR 2010 divide into rights available from Day 1 of an assignment and rights available after 12 weeks in the same role with the same hirer.
Day 1 rights
From Day 1 of an assignment, agency workers have the right to:
• equal access to collective facilities provided by the hirer, for example, canteens, waiting rooms, vending machines, toilet facilities, crèches, transport services (for example, local pick up and drop off services), car parking, mother and baby rooms, prayer rooms, rest facilities, accommodation for workers who have to sleep on site; and
• the right to be informed by the hirer of relevant vacant posts with the hirer, (but see the limits placed on this right by the case of Coles v Ministry of Defence [2015] UKEAT/0403/14/RN, summarised on page 65).
12-week rights
After 12 weeks on an assignment in the same role with the same hirer, agency workers are entitled to:
• equal treatment on pay, holidays and working time; and
• improved pregnancy rights.
“Pay” includes basic pay, holiday pay, unsocial hours payments (including enhanced pay for working on bank holidays), overtime pay, bonuses based on individual performance — including sales commissions and performance-related pay, some discretionary bonuses and vouchers (such as luncheon vouchers or childcare vouchers).
Pay does not include contractual sick pay, occupational pensions, maternity, paternity or adoption pay, bonuses unconnected to individual performance, rewarding loyalty or length of service, redundancy pay, advances in pay or loans, expenses, payments linked to financial participation schemes (for example, share ownership schemes) and benefits in kind.
“Working time” includes expecting an agency worker to sign the 48-hour opt out (see Chapter 4), night work, shift arrangements and rest breaks.
“Holidays” includes contractual holiday entitlement, arrangements for booking and taking holidays, arrangements for public holidays and any agreed arrangements for retaking holidays interrupted because of sickness.
The rights are available to both full- and part-time agency workers.
A hirer or agency has a defence to a claim for equal treatment if they can identify one comparable current direct employee with similar qualifications and experience who receives the same pay and conditions as the agency worker.
Improved pregnancy rights
After 12 weeks on the same assignment for the same hirer:
• pregnant temporary agency workers are entitled to:
◊ reasonable paid time off to attend ante-natal appointments when on assignments; and
◊ the offer of an alternative assignment for pregnancy-related reasons, or suspension on full pay when a suitable assignment is not available (Maternity Suspension).
• temporary agency workers whose partners are pregnant are entitled to unpaid time off to accompany her to up to two ante-natal appointments (see Chapter 9); and
• temporary agency workers who are prospective adopters are entitled to some rights to paid and unpaid time off for adoption appointments (for detail on the specific rights, see Chapter 9).
There are rules in the AWRs governing the calculation of the 12-week period, as well as anti-avoidance rules aimed at preventing abuse by employers who might, for example, try to arrange gaps between assignments or rotate workers between jobs or hirers. Breach of these anti-avoidance rules can lead to an award of up to £5,000 compensation.
Protection under the AWRs is “confined to working time and pay”. Unlike fixed-term employees (see page 60), agency workers have no general right to be treated “no less favourably” than their employed co-workers. In particular, there is no equivalent for agency workers to regulation 9 of the FTER, which gives fixed-term employees the chance to apply for permanent jobs. This was decided in the following case:
Mr Coles was an agency worker who had been assigned for several years to the Ministry of Defence (MoD) estates management department, to look after the accommodation needs of service personnel. A cost cutting restructuring placed 530 MoD employees at risk of redundancy. They were placed in a redeployment pool under an MoD redeployment procedure and promised priority consideration for vacancies. As part of the restructuring, Coles’ assignment was terminated and his role was advertised as a vacancy, to be filled by one of the redeployed staff. Coles was not given the opportunity to apply for the vacancy, since it was only available to direct employees at risk of redundancy.
Coles brought a tribunal claim arguing that he should have been allowed to join the redeployment pool and apply for roles alongside the permanent staff, since the restructuring left him without a job, just like the permanent employees. His claim was rejected. The EAT ruled that the MOD met its statutory duty under the AWRs to give agency workers information about current vacancies by advertising the role, describing this in itself as a “valuable” right. The AWRs did not require the MOD to give Coles the right to apply, or be interviewed or considered for the post. Temporary agency workers, said the EAT, are intended to provide employers with a flexible response to the needs of their business.
Coles v Ministry of Defence UKEAT/0403/14/RN