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Improved pregnancy rights for agency workers
[ch 2: pages 55-56]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 (see page 111, Maternity Suspension);
• temporary agency workers whose partners are pregnant are entitled to unpaid time off to accompany her to up to two antenatal appointments (see Chapter 9); and
• temporary agency workers who are prospective adopters have rights to paid and unpaid time off for adoption appointments (see page 304, 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, deliberately introduce gaps between assignments or rotate workers between jobs or hirers. Breach of these anti-avoidance rules can lead to up to £5,000 of compensation.
Where the AWRs are breached, workers have the right is to be paid the correct amount of pay and any arrears. Compensation can be apportioned between the hirer and the agency, depending on each party’s responsibility for the breach (regulation 18, AWR):
London Underground (LU) had been underfunding the pay of agency workers in breach of the AWRs, so it paid over sums to employment agency, Trainpeople, to fund compensation for the underpayments. However, the agency dishonestly kept the money before collapsing into liquidation. The Court of Appeal (CA) ordered LU to compensate agency workers for the underpayments even though it had already paid the money to Trainpeople. Since LU chose to deal with this agency, it, not the workers, should bear the burden of Trainpeople’s dishonesty, said the CA.
London Underground v Adelaide [2019] EWCA Civ 125)
The right to equal treatment under the AWRs is confined to pay, holidays, hours and specified pregnancy rights. Unlike fixed-term employees (see pages 51-53), agency workers have no general right to be treated “no less favourably” than their directly employed colleagues. 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 important case:
Mr Coles was an agency worker assigned for several years to the Ministry of Defence (MoD) estates management department. 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 allowed 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 as a “valuable” right. The AWRs did not require the MoD to allow Coles 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