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Employment: New regulations to implement the Temporary Agency Workers Directive

31 January 2012 |

Following consultations in 2009, the regulations implementing the EU Temporary Agency Workers Directive, the Agency Workers Regulations 2010 (the “Regulations”), have been laid before Parliament.  The Regulations are due to come into force on 1 October 2011.

The draft Regulations have been amended from those published in October last year as a result of the consultations.

The central right under the new Regulations is for temporary workers who are contracted by an employment agency but work under the control of the hirer to receive the same basic working and employment conditions as comparable employees in the hirer’s organisation after a 12 week qualifying period.

On completion of the 12 week qualifying period agency workers must receive equal treatment in relation to:

  • pay;
  • duration of working time;
  • right to work;
  • rest periods;
  • rest breaks; and
  • annual leave.

“Pay” includes salary, fees, bonuses and commission but excludes pension, occupational sick pay, maternity and paternity pay, redundancy pay, financial participation schemes such as share options and bonuses and incentives which are not directly attributable to individual performance.

Ordinarily a break of 6 weeks between work assignments for one hirer will be sufficient to “re-set the clock” on the 12 week qualifying period, however certain absences, for example due to ill health, maternity or temporary cessation of work at the hirer will be treated as suspending the qualifying period.  Periods before and after such absence that meet specified criteria will be added together for the purposes of the qualifying period.

Extensive anti-avoidance provisions in the Regulations are designed to prevent agencies and hirers artificially constructing assignments to defeat the 12 week qualifying period and tribunals can award individuals additional compensation of up to £5,000 in the event that anti-avoidance rules are breached.

Resources

The Agency Worker Regulations 2010

Explanatory memorandum

For further information or to discuss the issues raised, please get in touch.

Disclaimer

Content is for general information purposes only. The information provided is not intended to be comprehensive and it does not constitute or contain legal or other advice. If you require assistance in relation to any issue please seek specific advice relevant to your particular circumstances. In particular, no responsibility shall be accepted by the authors or by Abbiss Cadres LLP for any losses occasioned by reliance on any content appearing on or accessible from this article. For further legal information click here.

Circular 230 disclosure

To ensure compliance with requirements imposed by the IRS and other taxing authorities, we inform you that any tax advice contained in this article (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties that may be imposed on any taxpayer or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

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