The Agency Workers Regulations 2010 in Northern Ireland
S.I. 2010/93 · Made 20 January 2010 · Extends to United Kingdom
Terms And Conditions Of Employment
Made 20th January 2010
Laid before Parliament 21st January 2010
Coming into force 1st October 2011
The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 M1 in relation to employment rights and duties M2.
The Secretary of State makes these Regulations—
- (a)
in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and sections 15(1), (2) and (5) and 82(3) of, and paragraphs 7, 8 and 15(1) of Schedule 3 to, the Health and Safety at Work etc Act 1974 F1, (“the 1974 Act”); and
- (b)
independently of any proposals submitted by the Health and Safety Executive under section 11(3) of the 1974 Act.
The Secretary of State has consulted the Health and Safety Executive and such other bodies as appear to the Secretary of State to be appropriate, as required by section 50(1AA) of the 1974 Act M3.C1
Annotations to the whole text
Textual amendments
- F1
1974 c.37. Section 15(1) was substituted by the Employment Protection Act 1975 (c.71), section 116 and Schedule 15, paragraph 6 and amended by SI 2002/794, article 5(2) and Schedule 2. Section 82(3)(b) was amended by the Railways and Transport Safety Act 2003 (c.20), section 105(3)(a).
Marginal citations
- M1
- M2
SI 2000/738.
- M3
Section 50(1AA) was inserted by SI 2008/960, articles 3 16(1) and (2).
Modifications
- C1
Regulations modified (E.W.S.) (30.7.2020) by The Posted Workers (Agency Workers) Regulations 2020 (S.I. 2020/384), regs. 1(1), 3 (with reg. 5)
Contents
- Part 1: General and Interpretation
- 1Citation, commencement and extent
- 8Completion of the qualifying period and continuation of the regulation 5 rights
- 9Structure of assignments
- 12Rights of agency workers in relation to access to collective facilities and amenities
- 13Rights of agency workers in relation to access to employment
- 15Restrictions on contracting out
- 16Right to receive information
- 17Unfair dismissal and the right not to be subjected to detriment
- 18AExtension of time limit to facilitate conciliation before institution of proceedings
- 19Calculating a week's pay
- 20Liability of employers and principals
- 21Crown employment and service as a member of the armed forces
- 22House of Lords staff
- 23House of Commons staff
- 24Police service
- 25Amendments to legislation
- Signature
- Schedule 1: PROVISIONS EXTENDING TO ENGLAND AND WALES, SCOTLAND AND NORTHERN IRELAND
- 1Paragraph 1
- 2Paragraph 2
- 3Paragraph 3
- 4Paragraph 4 Repealed
- Part 1: PRIMARY LEGISLATION
- 1The Trade Union and Labour Relations (Consolidation) Act 1992
- 2Paragraph 2
- 3Paragraph 3
- 4Paragraph 4
- 5Paragraph 5
- 6Paragraph 6
- 7Paragraph 7
- 8The Employment Tribunals Act 1996
- 9The Employment Rights Act 1996
- 10Paragraph 10
- 11Paragraph 11
- 12Paragraph 12
- 13Paragraph 13
- 14Paragraph 14
- 15Paragraph 15
- Part 2: OTHER LEGISLATION
- 17The Management of Health and Safety at Work Regulations 1999
- 18Paragraph 18
- 19Paragraph 19
- 20Paragraph 20
- 21The Information and Consultation of Employees Regulations 2004
- 22Paragraph 22
- 23Paragraph 23
- 24Paragraph 24
- 25Paragraph 25
- 26Paragraph 26
- 27Paragraph 27
- 28The Transfer of Undertakings (Protection of Employment) Regulations 2006
- 29Paragraph 29
- 30The European Cooperative Society (Involvement of Employees) Regulations 2006
- 31Paragraph 31
- 32Paragraph 32
- 33Paragraph 33
- 34Paragraph 34
- 35Paragraph 35
- 36Paragraph 36
- 37Paragraph 37
- 38Paragraph 38
- 39The Companies (Cross-Border Mergers) Regulations 2007 Repealed
- 40Paragraph 40 Repealed
- 41Paragraph 41 Repealed
- 42Paragraph 42 Repealed
- 43Paragraph 43 Repealed
- 44Paragraph 44 Repealed
- 45Paragraph 45 Repealed
- 46Paragraph 46 Repealed
- 47The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009
- 48Paragraph 48
- 49Paragraph 49
- 50Paragraph 50
- 51Paragraph 51
- 52Paragraph 52
- Explanatory note
1Citation, commencement and extent
These Regulations may be cited as the Agency Workers Regulations 2010 and shall come into force on 1st October 2011.
These Regulations extend to England and Wales and Scotland only, save as provided for in Schedule 1 (provisions extending to England and Wales, Scotland and Northern Ireland).
8Completion of the qualifying period and continuation of the regulation 5 rights
Where an agency worker has completed the qualifying period with a particular hirer, the rights conferred by regulation 5 shall apply and shall continue to apply to that agency worker in relation to that particular hirer unless—
that agency worker is no longer working in the same role, within the meaning of regulation 7(3), with that hirer; or
there is a break between assignments, or during an assignment, when the agency worker is not working, to which regulation 7(8) does not apply.
9Structure of assignments
Notwithstanding paragraphs (1) and (2) of regulation 7, and regulation 8, if paragraphs (3) and (4) apply an agency worker shall be treated as having completed the qualifying period from the time at which the agency worker would have completed the qualifying period but for the structure of the assignment or assignments mentioned in paragraph (3).
Notwithstanding paragraphs (1) and (2) of regulation 7, and regulation 8, if paragraphs (3) and (4) apply an agency worker who has completed the qualifying period and—
is no longer entitled to the rights conferred by regulation 5, but
would be so entitled but for the structure of the assignment or assignments mentioned in paragraph (3),
shall be treated as continuing to be entitled to those rights from the time at which the agency worker completed that period.
This paragraph applies when an agency worker has—
completed two or more assignments with a hirer (H),
completed at least one assignment with H and one or more earlier assignments with hirers connected to H, or
worked in more than two roles during an assignment with H, and on at least two occasions has worked in a role that was not the “same role” as the previous role within the meaning of regulation 7(3).
This paragraph applies where—
the most likely explanation for the structure of the assignment, or assignments, mentioned in paragraph (3) is that H, or the temporary work agency supplying the agency worker to H, or, where applicable, H and one or more hirers connected to H, intended to prevent the agency worker from being entitled to, or from continuing to be entitled to, the rights conferred by regulation 5; and
the agency worker would be entitled to, or would continue to be entitled to, the rights conferred by regulation 5 in relation to H, but for that structure.
The following matters in particular shall be taken into account in determining whether the structure of the assignment or assignments mentioned in paragraph (3) shows that the most likely explanation for it is that mentioned in paragraph (4)(a)—
the length of the assignments;
the number of assignments with H and, where applicable, hirers connected to H;
the number of times the agency worker has worked in a new role with H and, where applicable, hirers connected to H, and that new role is not the “same role” within the meaning of regulation 7(3);
the number of times the agency worker has returned to work in the same role within the meaning of regulation 7(3) with H and, where applicable, hirers connected to H;
the period of any break between assignments with H and, where applicable, hirers connected to H.
For the purposes of this regulation hirers are connected to a hirer if one hirer (directly or indirectly) has control of the other hirer or a third person (directly or indirectly) has control of both hirers.
12Rights of agency workers in relation to access to collective facilities and amenities
An agency worker has during an assignment the right to be treated no less favourably than a comparable worker in relation to the collective facilities and amenities provided by the hirer.
The rights conferred by paragraph (1) apply only if the less favourable treatment is not justified on objective grounds.
“Collective facilities and amenities” includes, in particular—
canteen or other similar facilities;
child care facilities; and
transport services.
For the purposes of paragraph (1) an individual is a comparable worker in relation to an agency worker if at the time when the breach of paragraph (1) is alleged to take place—
both that individual and the agency worker are—
working for and under the supervision and direction of the hirer, and
engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills;
that individual works or is based at the same establishment as the agency worker or, where there is no comparable worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements; and
that individual is an employee of the hirer or, where there is no employee satisfying the requirements of sub-paragraphs (a) and (b), is a worker of the hirer and satisfies those requirements.
13Rights of agency workers in relation to access to employment
An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.
For the purposes of paragraph (1) an individual is a comparable worker in relation to an agency worker if at the time when the breach of paragraph (1) is alleged to take place—
both that individual and the agency worker are—
working for and under the supervision and direction of the hirer, and
engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills;
that individual works or is based at the same establishment as the agency worker; and
that individual is an employee of the hirer or, where there is no employee satisfying the requirements of sub-paragraphs (a) and (b), is a worker of the hirer and satisfies those requirements.
For the purposes of paragraph (1), an individual is not a comparable worker if that individual's employment with the hirer has ceased.
For the purposes of paragraph (1) the hirer may inform the agency worker by a general announcement in a suitable place in the hirer's establishment.
15Restrictions on contracting out
Section 203 M1 of the 1996 Act (restrictions on contracting out) shall apply in relation to these Regulations as if they were contained in that Act.
16Right to receive information
An agency worker who considers that the hirer or a temporary work agency may have treated that agency worker in a manner which infringes a right conferred by regulation 5, may make a written request to the temporary work agency for a written statement containing information relating to the treatment in question.
A temporary work agency that receives such a request from an agency worker shall, within 28 days of receiving it, provide the agency worker with a written statement setting out—
relevant information relating to the basic working and employment conditions of the workers of the hirer,
the factors the temporary work agency considered when determining the basic working and employment conditions which applied to the agency worker at the time when the breach of regulation 5 is alleged to have taken place, and
where the temporary work agency seeks to rely on regulation 5(3), relevant information which—
explains the basis on which it is considered that an individual is a comparable employee, and
describes the relevant terms and conditions, which apply to that employee.
If an agency worker has made a request under paragraph (1) and has not been provided with such a statement within 30 days of making that request, the agency worker may make a written request to the hirer for a written statement containing information relating to the relevant basic working and employment conditions of the workers of the hirer.
A hirer that receives a request made in accordance with paragraph (3) shall, within 28 days of receiving it, provide the agency worker with such a statement.
An agency worker who considers that the hirer may have treated that agency worker in a manner which infringes a right conferred by regulation 12 or 13, may make a written request to the hirer for a written statement containing information relating to the treatment in question.
A hirer that receives such a request from an agency worker shall, within 28 days of receiving it, provide the agency worker with a written statement setting out—
all relevant information relating to the rights of a comparable worker in relation to the rights mentioned in regulation 12 or, as the case may be, regulation 13, and
the particulars of the reasons for the treatment of the agency worker in respect of the right conferred by regulation 12 or, as the case may be, regulation 13.
Paragraphs (1) and (3) apply only to an agency worker who at the time that worker makes such a request is entitled to the right conferred by regulation 5.
Information provided under this regulation, whether in the form of a written statement or otherwise, is admissible as evidence in any proceedings under these Regulations.
If it appears to the tribunal in any proceedings under these Regulations—
that a temporary work agency or the hirer (as the case may be) deliberately, and without reasonable excuse, failed to provide information, whether in the form of a written statement or otherwise, or
that any written statement supplied is evasive or equivocal,
it may draw any inference which it considers it just and equitable to draw, including an inference that that temporary work agency or hirer (as the case may be) has infringed the right in question.
17Unfair dismissal and the right not to be subjected to detriment
An agency worker who is an employee and is dismissed shall be regarded as unfairly dismissed for the purposes of Part 10 of the 1996 Act if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in paragraph (3).
An agency worker has the right not to be subjected to any detriment by, or as a result of, any act, or any deliberate failure to act, of a temporary work agency or the hirer, done on a ground specified in paragraph (3).
The reasons or, as the case may be, grounds are—
that the agency worker—
brought proceedings under these Regulations;
gave evidence or information in connection with such proceedings brought by any agency worker;
made a request under regulation 16 for a written statement;
otherwise did anything under these Regulations in relation to a temporary work agency, hirer, or any other person;
alleged that a temporary work agency or hirer has breached these Regulations;
refused (or proposed to refuse) to forgo a right conferred by these Regulations; or
that the hirer or a temporary work agency believes or suspects that the agency worker has done or intends to do any of the things mentioned in sub-paragraph (a).
Where the reason or principal reason for subjection to any act or deliberate failure to act is that mentioned in paragraph (3)(a)(v), or paragraph 3(b) so far as it relates to paragraph (3)(a)(v), neither paragraph (1) nor paragraph (2) applies if the allegation made by the agency worker is false and not made in good faith.
Paragraph (2) does not apply where the detriment in question amounts to a dismissal of an employee within the meaning of Part 10 of the 1996 Act.
18AExtension of time limit to facilitate conciliation before institution of proceedingsF1C1C2
In this regulation—
Day A is the day on which the worker concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and
Day B is the day on which the worker concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.
In working out when the time limit set by regulation 18(4) expires the period beginning with the day after Day A and ending with Day B is not to be counted.
If the time limit set by regulation 18(4) would (if not extended by this paragraph) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.
The power conferred on the employment tribunal by regulation 18(5) to extend the time limit set by paragraph (4) of that regulation is exercisable in relation to that time limit as extended by this regulation.
19Calculating a week's payC1C2
For the purposes of regulation 18(12)—
a week's pay shall be the higher of—
the average weekly pay received by the agency worker, in relation to the assignment to which the claim relates, in the relevant period; and
the average weekly pay the agency worker should have been receiving by virtue of regulation 5, in relation to the assignment to which the claim relates, in the relevant period; and
for the purposes of this paragraph, only payments in respect of basic pay whether by way of annual salary, payments for actual time worked or by reference to output or otherwise shall be taken into account.
The relevant period is —
where the assignment has ended on or before the date the complaint was presented to the tribunal under regulation 18(2), the four week period (or in a case where the assignment was shorter than four weeks, that period) ending with the last day of the assignment to which the claim relates; or
where the assignment has not so ended the four week period (or in the case where that assignment was shorter than four weeks, that period) ending with the date of the complaint.
20Liability of employers and principalsC1C2
Anything done by a person in the course of employment shall be treated for the purposes of these Regulations as also done by their employer, whether or not it was done with that employer's knowledge or approval.
Anything done by a person as agent for the employer with the authority of the employer shall be treated for the purposes of these Regulations as also done by the employer.
In proceedings under these Regulations against any person in respect of an act alleged to have been done by an employee of that person, it shall be a defence for that person to prove that he or she took such steps as were reasonably practicable to prevent the employee from—
doing that act; or
doing, in the course of his or her employment, acts of that description.
21Crown employment and service as a member of the armed forcesC1
These Regulations have effect in relation to—
Crown employment,
service as a member of the armed forces of the Crown,
persons in Crown employment, and
persons in service as a member of the armed forces of the Crown,
as they have effect in relation to other employment and other employees.
In paragraph (1) “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision but subject to paragraph (4).
For the purposes of the application of the provisions of these Regulations in relation to Crown employment and service as a member of the armed forces of the Crown in accordance with paragraph (1)—
references to an employee shall be construed as references to a person in Crown employment or in service as a member of the armed forces of the Crown to whom the definition of employee is appropriate; and
references to a contract in relation to an employee shall be construed as references to the terms of employment of a person in Crown employment or in service as a member of the armed forces of the Crown to whom the definition of employee is appropriate.
Crown employment—
does not include service as a member of the armed forces of the Crown, but
does include employment by an association established for the purposes of Part 11 of the Reserve Forces Act 1996 M1.
22House of Lords staffC1
These Regulations have effect in relation to employment as a relevant member of the House of Lords staff as they have effect in relation to other employment.
In this regulation “relevant member of the House of Lords staff” means any person who is employed under a contract with the Corporate Officer of the House of Lords by virtue of which he is a worker.
23House of Commons staffC1
These Regulations have effect in relation to employment as a relevant member of the House of Commons staff as they have effect in relation to other employment.
In this regulation “relevant member of the House of Commons staff” means any person—
who was appointed by the House of Commons Commission; or
who is a member of the Speaker's personal staff.
24Police serviceC1
For the purposes of these Regulations, the holding, otherwise than under a contract of employment, of the office of constable or an appointment as a police cadet shall be treated as employment, under a contract of employment, by the relevant officer.
For the purposes of these Regulations, any constable or other person who has been seconded to SOCA to serve as a member of its staff shall be treated as employed by SOCA, in respect of actions taken by, or on behalf of, SOCA.
For the purposes of regulation 20—
the secondment of any constable or other person to SOCA to serve as a member of its staff shall be treated as employment by SOCA (and not as being employment by any other person); and
anything done by a person so seconded in the performance, or purported performance, of his functions shall be treated as done in the course of that employment.
In this regulation “the relevant officer” means—
in relation to a member of the police force or a special constable or police cadet appointed for a police area, the chief officer of police (or, in Scotland, the chief constable); and
in relation to any other person holding the office of constable or an appointment as a police cadet, the person who has the direction and control of the body of constables or cadets in question.
In this regulation “SOCA” means the Serious Organised Crime Agency.
25Amendments to legislation
Schedule 2 which contains amendments to legislation shall have effect.
Signature
Pat McFadden
Minister of State for Business, Innovation and Skills
Department for Business, Innovation and Skills
1
The following provisions of Schedule 2 to these Regulations extend to England and Wales, Scotland and Northern Ireland.
2
Paragraphs 28 and 29, relating to the Transfer of Undertakings (Protection of Employment) Regulations 2006 M1.
3
Paragraphs 30 to 38, relating to the European Cooperative Society (Involvement of Employees) Regulations 2006 M1.
4F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1The Trade Union and Labour Relations (Consolidation) Act 1992
The Trade Union and Labour Relations (Consolidation) Act 1992 M1 is amended as follows.
2
In section 70B (collective bargaining: training)—
after subsection (4) insert—
“(4A)If the information mentioned in subjection (4) includes information relating to the employment situation the employer must (so far as not required by subsection (4)) also provide at the same time to the trade union the following information—
(a)the number of agency workers working temporarily for and under the supervision and direction of the employer,
(b)the parts of the employer's undertaking in which those agency workers are working, and
(c)the type of work those agency workers are carrying out.”, and
in subsection (5) after “(4)” insert “ or (4A) ”.
3
In section 181(2) (general duty of employers to disclose information relating to their undertaking) after “undertaking” insert “ (including information relating to use of agency workers in that undertaking) ”.
4
Section 188(4), (disclosure for the purposes of consultation) is amended as follows.
Omit “and” at the end of paragraph (e).
After paragraph (f) add—
“(g)the number of agency workers working temporarily for and under the supervision and direction of the employer,
(h)the parts of the employer's undertaking in which those agency workers are working, and
(i)the type of work those agency workers are carrying out.”.
5
In section 298 (minor definitions: general), after the entry relating to “act” and “action” insert—
““agency worker” has the meaning given in regulation 3 of the Agency Workers Regulations 2010;”.
6
In section 299 (index of defined expressions), insert in the appropriate place—
“
agency worker section 298 ”
7
Schedule A1 is amended as follows.
In paragraph 7, after sub-paragraph (5), insert—
“(5A)Sub-paragraph (5B) applies to an agency worker whose contract within regulation 3(1)(b) of the Agency Workers Regulations 2010 (contract with the temporary work agency) is not a contract of employment.
(5B)For the purposes of sub-paragraphs (1) and (2), the agency worker is to be treated as having a contract of employment with the temporary work agency for the duration of the assignment with the employer (and “assignment” has the same meaning as in those Regulations).”.
In paragraph 99, after sub-paragraph (5), insert—
“(5A)Sub-paragraph (5B) applies to an agency worker whose contract within regulation 3(1)(b) of the Agency Workers Regulations 2010 (contract with the temporary work agency) is not a contract of employment..
(5B)For the purposes of sub-paragraphs (1) and (4), the agency worker is to be treated as having a contract of employment with the temporary work agency for the duration of the assignment with the employer (and “assignment” has the same meaning as in those Regulations).”.
8The Employment Tribunals Act 1996
The Employment Tribunals Act 1996 M1 is amended as follows—
In section 18(1) M2 (cases where conciliation provisions apply)—
at the end of the paragraph inserted by regulation 33 of the European Public Limited- Liability Company (Employee Involvement) (Great Britain) Regulations 2009 M3, omit “or”, and
after paragraph (w), insert—
“, or
(x)arising out of a contravention, or alleged contravention of regulation 5, 12, 13 or 17(2) of the Agency Workers Regulations 2010.”;
In section 21 M4 (jurisdiction of the Employment Appeal Tribunal) in subsection (1) (which specifies the proceedings and claims to which the section applies)—
at the end of paragraph (w), omit “or”, and
after paragraph (x), insert—
“, or
(y)the Agency Workers Regulations 2010.”.
9The Employment Rights Act 1996
The 1996 Act is amended as follows.
10
In section 27(1) M1 (protection of wages; sums included in “wages”), after paragraph (f) insert—
“(fa)remuneration on ending the supply of an agency worker on maternity grounds under section 68C of this Act.”
11
After section 57 insert—
“Ante-natal care: agency workers
Right to time off for ante-natal care (agency workers)
57ZA(1) An agency worker who—
(a)is pregnant, and
(b)has, on the advice of a registered medical practitioner, registered midwife or registered nurse, made an appointment to attend at any place for the purpose of receiving ante-natal care,
is entitled to be permitted, by the temporary work agency and the hirer, to take time off during the agency worker's working hours in order to enable her to keep the appointment. (2) An agency worker is not entitled to be permitted by either of those persons to take time off under this section to keep an appointment unless, if that person requests her to do so, she produces for that person's inspection—
(a)a certificate from a registered medical practitioner, registered midwife or registered nurse stating that the agency worker is pregnant, and
(b)an appointment card or some other document showing that the appointment has been made.
(3) Subsection (2) does not apply where the agency worker's appointment is the first appointment during her pregnancy for which she seeks permission to take time off in accordance with subsection (1). (4) For the purposes of this section the working hours of an agency worker shall be taken to be any time when, in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer, the agency worker is required to be at work. (5) In this section references to a registered nurse have the same meaning as in section 55.
Right to remuneration for time off under section 57ZA
57ZB(1) An agency worker who is permitted to take time off under section 57ZA is entitled to be paid remuneration by the temporary work agency for the period of absence at the appropriate hourly rate. (2) The appropriate hourly rate, in relation to an agency worker, is the amount of one week's pay divided by the number of normal working hours in a week for that agency worker in accordance with the terms under which the agency worker works temporarily for and under the supervision and direction of the hirer that are in force on the day when the time off is taken. (3) But where the number of normal working hours during the assignment differs from week to week or over a longer period, the amount of one week's pay shall be divided instead by the average number of normal working hours calculated by dividing by twelve the total number of the agency worker's normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off is taken. (4) A right to any amount under subsection (1) does not affect any right of an agency worker in relation to remuneration under her contract with the temporary work agency (“contractual remuneration”). (5) Any contractual remuneration paid to an agency worker in respect of a period of time off under section 57ZA goes towards discharging any liability of the temporary work agency to pay remuneration under subsection (1) in respect of that period; and, conversely, any payment of remuneration under subsection (1) in respect of a period goes towards discharging any liability of the temporary work agency to pay contractual remuneration in respect of that period.
Complaint to employment tribunal: agency workers
57ZC(1) An agency worker may present a complaint to an employment tribunal that the temporary work agency—
(a)has unreasonably refused to permit her to take time off as required by section 57ZA, or
(b)has failed to pay the whole or any part of any amount to which she is entitled under section 57ZB.
(2) An agency worker may present a complaint to an employment tribunal that the hirer has unreasonably refused to permit her to take time off as required by section 57ZA. (3) An employment tribunal shall not consider a complaint under subsection (1) or (2) unless it is presented—
(a)before the end of the period of three months beginning with the date of the appointment concerned, or
(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
(4) Where an employment tribunal finds a complaint under this section well-founded, the tribunal shall make a declaration to that effect. (5) If the complaint is that the temporary work agency or hirer has unreasonably refused to permit the agency worker to take time off, the tribunal shall also order payment to the agency worker of an amount equal to the remuneration to which she would have been entitled under section 57ZB if she had not been refused the time off. (6) Where the tribunal orders payment under subsection (5), the amount payable by each party shall be such as may be found by the tribunal to be just and equitable having regard to the extent of each respondent's responsibility for the infringement to which the complaint relates. (7) If the complaint is that the temporary work agency has failed to pay the agency worker the whole or part of any amount to which she is entitled under section 57ZB, the tribunal shall also order the temporary work agency to pay to the agency worker the amount which it finds due to her.
Agency workers: supplementary
57ZD(1) Without prejudice to any other duties of the hirer or temporary work agency under any enactment or rule of law sections 57ZA to 57ZC do not apply where the agency worker—
(a)has not completed the qualifying period, or
(b)is no longer entitled to the rights conferred by regulation 5 of the Agency Workers Regulations 2010 pursuant to regulation 8(a) or (b) of those Regulations.
(2) Nothing in those sections imposes a duty on the hirer or temporary work agency beyond the original intended duration, or likely duration of the assignment, whichever is the longer. (3) Those sections do not apply where sections 55 to 57 apply. (4) In this section and sections 57ZA to 57ZC the following have the same meaning as in the Agency Workers Regulations 2010—
“agency worker”;
“assignment”;
“hirer”;
“qualifying period”;
“temporary work agency”.”.
12
After section 68 insert—
“Ending the supply of an agency worker on maternity grounds
Meaning of ending the supply of an agency worker on maternity grounds
68A(1) For the purposes of this Part the supply of an agency worker to a hirer is ended on maternity grounds if, in consequence of action taken pursuant to a provision listed in subsection (2), the supply of the agency worker to the hirer is ended on the ground that she is pregnant, has recently given birth or is breastfeeding a child. (2) The provisions are—
(a)regulations 8(3) or 9(2) of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997;
(b)regulation 16A(2) or 17A of the Management of Health and Safety at Work Regulations 1999; or
(c)regulation 20 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
Right to offer of alternative work
68B(1) Where the supply of an agency worker to a hirer is ended on maternity grounds and the temporary work agency has available suitable alternative work, the agency worker has a right to be offered to be proposed for such alternative work. (2) For alternative work to be suitable for an agency worker for the purposes of this section—
(a)the work must be of a kind which is both suitable in relation to her and appropriate for her to do in the circumstances, and
(b)the terms and conditions applicable to her whilst performing the work, if they differ from the corresponding terms and conditions which would have applied to her but for the fact that the supply of the agency worker to the hirer was ended on maternity grounds, must not be substantially less favourable to her than those corresponding terms and conditions.
(3) Subsection (1) does not apply—
(a)where the agency worker has confirmed in writing that she no longer requires the work-finding services of the temporary work agency, or
(b)beyond the original intended duration, or likely duration, whichever is the longer, of the assignment which ended when the supply of the agency worker to the hirer was ended on maternity grounds.
Right to remuneration
68C(1) Where the supply of an agency worker to a hirer is ended on maternity grounds, that agency worker is entitled to be paid remuneration by the temporary work agency. (2) An agency worker is not entitled to remuneration under this section in respect of any period if—
(a)the temporary work agency has—
(i)offered to propose the agency worker to a hirer that has alternative work available which is suitable alternative work for her for the purposes of section 68B, or
(ii)proposed the agency worker to a hirer that has such suitable alternative work available, and that hirer has agreed to the supply of that agency worker, and
(b)the agency worker has unreasonably refused that offer or to perform that work.
(3) Nothing in this section imposes a duty on the temporary work agency to pay remuneration beyond the original intended duration, or likely duration, whichever is the longer, of the assignment which ended when the supply of the agency worker to the hirer was ended on maternity grounds.
Agency workers: supplementary
68D(1) Without prejudice to any other duties of the hirer or temporary work agency under any enactment or rule of law sections 68A, 68B and 68C do not apply where the agency worker—
(a)has not completed the qualifying period, or
(b)is no longer entitled to the rights conferred by regulation 5 of the Agency Workers Regulations 2010 pursuant to regulation 8(a) or (b) of those Regulations.
(2) Nothing in those sections imposes a duty on the hirer or temporary work agency beyond the original intended duration, or likely duration of the assignment, whichever is the longer. (3) Those sections do not apply where sections 66 to 68 apply. (4) In this section and sections 68A to 68C the following have the same meaning as in the Agency Workers Regulations 2010—
“agency worker”
“assignment”;
“hirer”;
“qualifying period”;
“temporary work agency”.”.
13
After section 69 insert—
“Calculation of remuneration (agency workers)
69A(1) The amount of remuneration payable by a temporary work agency to an agency worker under section 68C is a week's pay in respect of each week for which remuneration is payable in accordance with section 68C; and if in any week remuneration is payable in respect of only part of that week the amount of a week's pay shall be reduced proportionately. (2) A right to remuneration under section 68C does not affect any right of the agency worker in relation to remuneration under the contract with the temporary work agency (“contractual remuneration”). (3) Any contractual remuneration paid by the temporary work agency to an agency worker in respect of any period goes towards discharging the temporary work agency's liability under section 68C in respect of that period; and, conversely, any payment of remuneration in discharge of a temporary work agency's liability under section 68C in respect of any period goes towards discharging any obligation of the temporary work agency to pay contractual remuneration in respect of that period. (4) For the purposes of subsection (1), a week's pay is the weekly amount that would have been payable to the agency worker for performing the work, according to the terms of the contract with the temporary work agency, but for the fact that the supply of the agency worker to the hirer was ended on maternity grounds. (5) Expressions used in this section and sections 68A to 68C have the same meaning as in those sections (see section 68D).”.
14
After section 70 insert—
“Complaints to employment tribunals: agency workers
70A(1) An agency worker may present a complaint to an employment tribunal that the temporary work agency has failed to pay the whole or any part of remuneration to which the agency worker is entitled under section 68C. (2) An employment tribunal shall not consider a complaint under subsection (1) relating to remuneration in respect of any day unless it is presented—
(a)before the end of the period of three months beginning with the day on which the supply of the agency worker to a hirer was ended on maternity grounds, or
(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within that period of three months.
(3) Where an employment tribunal finds a complaint under subsection (1) well-founded, the tribunal shall order the temporary work agency to pay the agency worker the amount of remuneration which it finds is due to her. (4) An agency worker may present a complaint to an employment tribunal that in contravention of section 68B the temporary work agency has failed to offer to propose the agency worker to a hirer that has suitable alternative work available. (5) An employment tribunal shall not consider a complaint under subsection (4) unless it is presented—
(a)before the end of the period of three months beginning with the day on which the supply of the agency worker to a hirer was ended on maternity grounds, or
(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within that period of three months.
(6) Where an employment tribunal finds a complaint under subsection (4) well-founded, the tribunal shall order the temporary work agency to pay the agency worker the amount of compensation which it finds is due to her. (7) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—
(a)the infringement of the agency worker's right under section 68B by the failure on the part of the temporary work agency to which the complaint relates, and
(b)any loss sustained by the agency worker which is attributable to that failure.
(8) Expressions used in this section and sections 68A to 68C have the same meaning as in those sections (see section 68D).”.
15
In section 105 M1 (redundancy as unfair dismissal) in subsection (1)(c) (which requires one of a specified group of subsections to apply for a person to be treated as unfairly dismissed) for “(7M)” substitute “ (7N) ” and after subsection 7M insert—
“(7N)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) of regulation 17 of the Agency Workers Regulations 2010 (unless the case is one to which paragraph (4) of that regulation applies).”.
17The Management of Health and Safety at Work Regulations 1999
The Management of Health and Safety at Work Regulations 1999 M1 are amended as follows.
After regulation 16 insert—
“Alteration of working conditions in respect of new or expectant mothers (agency workers)
16A(1)Where, in the case of an individual agency worker, the taking of any other action the hirer is required to take under the relevant statutory provisions would not avoid the risk referred to in regulation 16(1) the hirer shall, if it is reasonable to do so, and would avoid such risks, alter her working conditions or hours of work.
(2)If it is not reasonable to alter the working conditions or hours of work, or if it would not avoid such risk, the hirer shall without delay inform the temporary work agency, who shall then end the supply of that agency worker to the hirer.
(3)In paragraphs (1) and (2) references to risk, in relation to risk from any infectious or contagious disease, are references to a level of risk at work which is in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace. ”.
18
After regulation 17 insert—
“Certificate from registered medical practitioner in respect of new or expectant mothers (agency workers)
17AWhere—
(a)a new or expectant mother works at night; and
(b)a certificate from a registered medical practitioner or a registered midwife shows that it is necessary for her health or safety that she should not be at work for any period of such work identified in the certificate,
the hirer shall without delay inform the temporary work agency, who shall then end the supply of that agency worker to the hirer.”.
19
After regulation 18 insert—
“Notification by new or expectant mothers (agency workers)
18A(1)Nothing in regulation 16A(1) or (2) shall require the hirer to take any action in relation to an agency worker until she has notified the hirer in writing that she is pregnant, has given birth within the previous six months, or is breastfeeding.
(2)Nothing in regulation 16A(2) shall require the temporary work agency to end the supply of the agency worker until she has notified the temporary work agency in writing that she is pregnant, has given birth within the previous six months, or is breastfeeding.
(3)Nothing in regulation 16A(1) shall require the hirer to maintain action taken in relation to an agency worker—
(a)in a case—
(i)to which regulation 16A(1) relates; and
(ii)where the agency worker has notified the hirer, that she is pregnant, where she has failed, within a reasonable time of being requested to do so in writing by the hirer, to produce for the hirer's inspection a certificate from a registered medical practitioner or a registered midwife showing that she is pregnant; or
(b)once the hirer knows that she is no longer a new or expectant mother; or
(c)if the hirer cannot establish whether she remains a new or expectant mother.
Agency workers: general provisions
18AB(1)Without prejudice to any other duties of the hirer or temporary work agency under any enactment or rule of law in relation to health and safety at work, regulation 16A, 17A and 18A shall not apply where the agency worker—
(a)has not completed the qualifying period, or
(b)is no longer entitled to the rights conferred by regulation 5 of the Agency Workers Regulations 2010 pursuant to regulation 8(a) or (b) of those Regulations.
(2)Nothing in regulations 16A or 17A imposes a duty on the hirer or temporary work agency beyond the original intended duration, or likely duration of the assignment, whichever is the longer.
(3)This regulation, and regulations 16A, 17A and 18A do not apply in circumstances where regulations 16, 17 and 18 apply.
(4)For the purposes of this regulation and regulations 16A, 17A or 18A the following have the same meaning as in the Agency Workers Regulations 2010—
“agency worker”;
“assignment”;
“hirer”;
“qualifying period”;
“temporary work agency”.”.
20
In regulation 20(1)(a) for “regulations 16-18”, substitute, “ regulations 16-18AB ”.
21The Information and Consultation of Employees Regulations 2004
The Information and Consultation of Employees Regulations 2004 M1 are amended as follows.
22
In regulation 2 (interpretation) after the definition of—
“the 1996 Act” insert—
““agency worker” has the same meaning as in regulation 3 of the Agency Workers Regulations 2010;”; and
“standard information and consultation provisions” insert—
““suitable information relating to the use of agency workers” means information as to—
- (a)
the number of agency workers working temporarily for and under the supervision and direction of the employer,
- (b)
the parts of the employer's undertaking in which those agency workers are working, and
- (c)
the type of work those agency workers are carrying out.”.
23
After regulation 3 insert—
“Agency Workers
3A(1)Paragraphs (2) and (3) apply to an agency worker whose contract within regulation 3(1)(b) of the Agency Workers Regulations 2010 (contract with the temporary work agency) is not a contract of employment.
(2)For the purposes of regulations 3, 4 and Schedule 1, any agency worker who has a contract with a temporary work agency shall be treated as being employed by that temporary work agency for the duration of that agency worker's assignment with the employer.
(3)In these Regulations “assignment” has the same meaning as in regulation 2 and “temporary work agency” has the same meaning as in regulation 4, of the Agency Workers Regulations 2010.”.
24
After regulation 8 insert—
“Pre-existing agreements: agency workers
8AWhere information about the employment situation is to be provided under a pre-existing agreement by an employer, such information must include suitable information relating to the use of agency workers (if any) in that undertaking.”.
25
In regulation 16(1), omit the “and” at the end of sub-paragraph (e).
26
In regulation 16(1), after sub-paragraph (f) add—
“and
(g)provide that where an employer is to provide information about the employment situation, under that agreement or under any part, such information shall include suitable information relating to the use of agency workers (if any) in that undertaking.”.
27
In regulation 20, paragraph (1), sub-paragraph (b), after “the situation, structure and probable development of employment within the undertaking” and before “and on any anticipatory measures envisaged” insert “ (and such information must include suitable information relating to the use of agency workers (if any) in that undertaking) ”.
28The Transfer of Undertakings (Protection of Employment) Regulations 2006
The Transfer of Undertakings (Protection of Employment) Regulations 2006 M1 are amended as follows.
29
In regulation 13, after paragraph (2) insert—
“2AWhere information is to be supplied under paragraph (2) by an employer—
(a)this must include suitable information relating to the use of agency workers (if any) by that employer; and
(b)“suitable information relating to the use of agency workers” means—
(i)the number of agency workers working temporarily for and under the supervision and direction of the employer;
(ii)the parts of the employer's undertaking in which those agency workers are working; and
(iii)the type of work those agency workers are carrying out.”.
30The European Cooperative Society (Involvement of Employees) Regulations 2006
The European Cooperative Society (Involvement of Employees) Regulations 2006 M1 are amended as follows.
31
In regulation 3 (interpretation) after the definition in paragraph (1) of—
“absolute majority vote” insert—
““agency worker” has the same meaning as in regulation 3 of the Agency Workers Regulations 2010;”;
“Appeal Tribunal” insert—
““assignment” has the same meaning as in regulation 2 of the Agency Workers Regulations 2010;”;
“employees' representatives” insert—
““hirer” has the same meaning as in regulation 2 of the Agency Workers Regulations 2010;”; and
“standard rules on employee involvement” insert—
““suitable information relating to the use of agency workers” means—
- (a)
the number of agency workers working temporarily for and under the supervision and direction of the SCE or any subsidiary, in each EEA State;
- (b)
the parts of the SCE's or subsidiary's undertaking and the concerned establishments in which those agency workers are working; and
- (c)
the type of work those agency workers are carrying out;
“temporary work agency” has the same meaning as in regulation 4 of the Agency Workers Regulations 2010;”.
32
After regulation 6 insert—
“Agency Workers
6A(1)Paragraph (2) applies to an agency worker whose contract within regulation 3(1)(b) of the Agency Worker's Regulations 2010 (contract with the temporary work agency) is not a contract of employment.
(2)For the purposes of regulations 5 and 6, any agency worker who has a contract with a temporary work agency, that is a participating individual, participating legal entity or SCE, shall be treated as being employed by that temporary work agency for the duration of that agency worker's assignment with the hirer.”.
33
In regulation 7, paragraph 2—
omit the “and” at the end of sub-paragraph (c), and
after sub-paragraph (d); add—
“(e)the number of agency workers working temporarily for and under the supervision and direction of a participating individual, legal entity or subsidiary;
(f)the parts of the undertaking and concerned establishments in which those agency workers are working; and
(g)the type of work those agency workers are carrying out.”.
34
After regulation 17, paragraph (5) insert—
“(6)Where under the employee involvement agreement information is to be provided on the employment situation in the SCE, such information must include suitable information relating to the use of agency workers (if any) in that SCE.”.
35
After regulation 21, paragraph (3) insert—
“(3A)For the purposes of paragraph (3), agency workers, whose contract within regulation 3(1)(b) of the Agency Workers Regulations 2010 was not a contract of employment with one or more temporary work agencies that were participating individuals or SCEs at the relevant time, are to be treated as having been employed by such a temporary work agency or agencies for the duration of any assignment with a hirer.”.
36
In Schedule 1, paragraph 1—
omit the “and” at the end of sub-paragraph (2)(b); and
after sub-paragraph (2)(c) add—
“(d)the number of agency workers working temporarily for and under the supervision and direction of the SCE or any subsidiary, in each EEA State;
(e)the parts of the undertaking or any establishment in which those agency workers are working; and
(f)the type of work those agency workers are carrying out.”.
37
After Schedule 1, paragraph 11, sub-paragraph (4) add—
“(5)Where under the employee involvement agreement the competent organ of the SCE is to provide information on the employment situation in the SCE, such information must include suitable information relating to the use of agency workers (if any) in that SCE.”.
38
After Schedule 2, paragraph 6, sub-paragraph (3) insert—
“3AWhere under sub-paragraphs (2) and (3) the competent organ of the SCE is to provide information on the employment situation in the SCE, such information must include suitable information relating to the use of agency workers (if any) in that SCE.”.
39The Companies (Cross-Border Mergers) Regulations 2007F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
41F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
43F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
44F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46F1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
47The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009
The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 M1 are amended as follows.
48
In regulation 3 (interpretation) after the definition in paragraph (1)—
of “absolute majority vote” insert—
““agency worker” has the same meaning as in regulation 3 of the Agency Workers Regulations 2010;” and
of “standard rules on employee involvement” insert—
““suitable information relating to the use of agency workers” means—
- (a)
the number of agency workers working temporarily for and under the supervision and direction of the undertaking;
- (b)
the parts of the undertaking in which those agency workers are working; and
- (c)
the type of work those agency workers are carrying out.”.
49
In regulation 5, paragraph (2)—
omit the “and” at the end of sub-paragraph (b); and
after sub-paragraph (c) insert—
“(d)the number of agency workers working temporarily for and under the supervision and direction of the undertaking;
(e)the parts of the undertaking in which those agency workers are working; and
(f)the type of work those agency workers are carrying out.”.
50
After regulation 15, paragraph (3) insert—
“(3A)Where under the employee involvement agreement the competent organ of the SE is to provide information on the employment situation in that company, such information must include suitable information relating to the use of agency workers (if any) in that company. ”.
51
After regulation 19, paragraph (3) insert—
“(3A)This paragraph applies to an agency worker whose contract within regulation 3(1)(b) of the Agency Workers Regulations 2010 (contract with the temporary work agency) is not a contract of employment—
(a)for the purposes of paragraph (3)(a) and (b), any agency worker who has a contract with a temporary work agency, which was at the relevant time a participating company, is to be treated as having been employed by that temporary work agency for the duration of their assignment with a hirer, and
(b)in this paragraph “assignment” and “hirer” have the same meaning as in regulation 2, and “temporary work agency” has the same meaning as in regulation 4, of the Agency Workers Regulations 2010.”.
52
In the Schedule, Part 2, after paragraph 8 insert—
“8AWhere under the provisions of this Part, the competent organ of the SE is to provide information on the employment situation in that company, such information must include suitable information relating to the use of agency workers (if any) in that company.”.
Explanatory note
(This note is not part of the Regulations)
These Regulations, which are made under section 2(2) of the European Communities Act 1972 (c.68), and sections 15(1), (2) and (5), 82(3) of, and paragraphs 7, 8 and 15(1) of Schedule 3 to the Health and Safety at Work etc Act 1974 (c.37) implement (in England and Wales and Scotland and, in relation to some provisions, also Northern Ireland) Council Directive 2008/104/EC of 19th November 2008 on temporary agency work (OJ L 327, 5.12.2008, p.9). This Directive establishes a general framework for protection of temporary agency workers. The Regulations provide certain rights for temporary agency workers including in relation to basic working and employment conditions.
Regulations 2 to 4 provide definitions, including those of ‘agency worker’ and ‘temporary work agency’. Regulation 5 provides a right for the agency worker to the same basic working and employment conditions as the agency worker would have been entitled to if they had been recruited directly by the hirer. Regulation 6 specifies that it is terms and conditions in the hirer relating to pay, the duration of working time, night work, rest periods, rest breaks and annual leave that are relevant.
Regulation 7 makes provision for a qualifying period, and sets out the conditions which need to be met to qualify for the right provided for by regulation 5. Regulation 8 sets out the consequences that arise when an agency worker has completed the qualifying period.
Regulation 9 sets out the circumstances in which an agency worker is to be treated as having completed the qualifying period and, where applicable, is to be treated as continuing to be entitled to those rights.
Regulation 10 disapplies regulation 5, insofar as it relates to pay, where a permanent contract of employment is entered into between a temporary work agency and the agency worker. It provides a number of conditions that must be fulfilled in relation to 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 11 sets out how that minimum amount of pay is to be calculated.
Regulations 12 and 13 give rights to agency workers in relation to access to collective facilities and amenities provided by the hirer, and access to employment with the hirer.
Regulation 14 deals with issues of liability. Agency workers are involved in a triangular relationship involving the temporary work agency and hirer. This regulation provides that the temporary work agency and hirer can both be liable to the extent that they are responsible for a breach of regulation 5, and sets out the circumstances in which a temporary work agency is not responsible for a breach of that regulation. Regulation 14 also provides that the hirer is liable for breaches of regulations 12 and 13. Regulation 15 makes provision in relation to restrictions on contracting out.
Regulation 16 provides a right for the agency worker to receive information from the temporary work agency, or hirer as applicable, in relation to the rights and duties conferred by regulations 5, 12 and 13.
Regulation 17 makes provision in relation to 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. Regulation 18 includes provision for a minimum award of two weeks' pay, and for an additional award of up to £5,000 where regulation 9 applies. Regulation 20 deals with the liability of employers and principals.
Regulations 21 to 24 contain provisions which make the Regulations applicable to Crown employment, the armed services, the House of Lords, the House of Commons and the police service.
Schedule 1 lists the particular provisions of these Regulations which extend to Northern Ireland.
Schedule 2 contains consequential amendments to primary and secondary legislation (including in relation to disclosure of information about agency workers, collective bargaining and health and safety matters).
An Impact Assessment report of the effect that these Regulations will have on the costs to business and a Transposition Note, showing how the Directive has been given effect by these Regulations, are available from the Employment Relations Directorate, Department for Business, Innovation and Skills, 1 Victoria Street, London SW1H 0ET. Copies of each have also been placed in the libraries of both Houses of Parliament.