This article was first published in UK Recruiter, 27 July 2011.
Read the first and third in the series of Neil's articles on the Agency Workers Regulations.
The Agency Workers Regulations (“AWR”) will have a wide reach and those not operating business models that fall within the exemptions set out in the AWR, are likely to comprise a large section of businesses in the temps sector. It is therefore essential to understand your obligations and those of your clients under the AWR.
The AWR provide that temps are entitled to the same basic working and employment conditions as directly recruited permanent employees doing the same job, or the same working and employment conditions as if s/he had been recruited as a permanent employee by the hirer.
What does equal treatment mean in practice?
It is important to note that the AWR refer only to basic working and employment conditions. Further, it is only the basic working and employment conditions that would ordinarily be included in a directly recruited permanent employee’s contract. Therefore, individually negotiated terms and ‘golden hellos’ are not included. Temps therefore will not necessarily acquire an entitlement to all the terms and conditions of the hirer’s permanent employees.
Basic working and employment conditions are those relating to pay, duration of working time, night work, rest periods, rest breaks and annual leave. We will explore what is meant by pay in more detail in next month’s article. However, where work is limited to 48 hours per week or some other level, temps should have the same limit applied to their working hours. Temps should also be given the same shift patterns in respect of night work, be given the same rest periods and rest breaks, such as for example, one hour for lunch or a 15 minute rest break as permanent employees and should also be given the same annual holiday allowance as permanent employees.
In addition, temps are entitled to the same access to facilities such as a canteen, childcare facilities, car parking and transport. Temps are also entitled to the same access to information on vacancies within the hirer and to be considered for permanent employment.
From when do the equal treatment rights apply?
The right to equal treatment in respect of access to facilities and information on vacancies applies from the day the temp starts to work for the hirer, known as “Day 1 rights”.
However, the right to equal treatment in respect of pay, duration of working time, night work, rest periods, rest breaks and annual leave kicks in after a 12 week qualifying period. We will explore the qualifying period in more detail in next month’s article.
Often a comparator will be easy to identify. For example, a temp working on a production line doing the same job as permanent employee will be able to use that employee as a comparator and compare his/her basic working and employment conditions to that employee.
It is important to note that in seeking to defend an allegation of unequal treatment the hirer or agency can identify the appropriate comparator to justify the different treatment. That comparator should preferably be a permanent employee performing the same role. However, in practice the temp may not be performing the same role as anyone else in the business, or may be performing the same role at a different geographical location.
Hirers and agencies can use this to justify the difference in treatment. Depending on the difference in location, the Tribunals are likely to allow businesses to operate pay differentials based on geographical location. They are also likely to allow businesses to pay different rates of pay to individuals performing roles which are not broadly similar.
By way of an example, a hirer operating in the care home sector operates a graded pay structure depending on experience. That hirer recruits a temp with considerable experience but places him/her at the bottom of its pay scale. It does this because s/he is a new recruit. In such circumstances, this is likely to be in breach of the requirement for equal treatment if the temp’s experience means that s/he would have started further up the pay scale. However, if the hirer can show that it treats all new joiners in this way, whether a temp or permanent worker, regardless of experience then the difference in treatment is likely to be justified.
The right to equal treatment is not therefore as far reaching as it initially sounds. However, it will require changes in how both hirers and agencies operate in respect of the Day 1 and Week 12 rights and a prudent employer will be taking steps now to prepare for the changes.
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