New regulations were made in January 2010 to implement in England, Wales and Scotland the 2008 European Council Directive 2008/104/EC on temporary agency work. Although the Agency Workers Regulations 2010 have now been made they will not come into force until 1 October 2011, a few weeks ahead of the 5 December 2011 deadline set by the EC Directive.
The regulations ensure that after 12 weeks in a given job agency supplied workers will be entitled to equal treatment with employees concerning basic working and employment conditions, including pay and holidays, as if they had been recruited directly by the hirer. In addition from the first day of an assignment agency workers will be entitled to information about vacancies in the hirer to give them the same opportunity as other workers to find permanent employment and to equal access to on-site facilities such as child care facilities.
In more detail, the main provisions are as follows:-
- Regulation 5 – provides the fundamental right that the agency worker (“A”) “shall be entitled to the same basic working and employment conditions as A would be entitled to for doing the same job had A been recruited by the hirer” – in connection with pay, the duration of working time, night work, rest periods, rest breaks and annual leave (Reg 6);
- Regulation 7 – provides for a qualifying period, in the same role with the same hirer, of 12 weeks in order to be entitled to the right set out in Reg 5;
- Regulation 10 – in connection with pay Regulation 5 will not apply where a permanent contract of employment is entered into between a temporary work agency and the agency worker. Certain conditions must be fulfilled regarding the form and terms of the permanent contract, and for a minimum amount of pay to be paid to the agency worker between assignments;
- Regulation 14 – concerns liability, noting that agency workers are involved in a triangular relationship involving the temporary work agency and hirer. Crucially, the temporary work agency and hirer can both be liable to the extent that they are responsible for a breach of Reg 5, although in some circumstances the temporary work agency will not be held responsible;
- Regulation 17 – sets out the right not to be unfairly dismissed or subjected to a detriment for a reason relating to these Regulations;
- Regulation 18 – provides remedies for individuals, including compensation, by way of proceedings in employment tribunals.
The Prime Minister pledged to the TUC Congress in September 2009 that “when parliament returns our new legislative programme will include equal treatment for agency workers”. This pledge has thus now been fulfilled.