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Regulations
Regulations provide information on recent and important workplace legislation pertaining to the areas of health and safety, human resources and the environment.
Each Regulation entry details the official description of the Regulation, its jurisdiction and enforcer, and expert analysis of the Regulation as written by our experts in an easy-to-understand way, as well as a link to the official Act.
Agency Workers Regulations 2010
- Date Act passed:
- 1 Oct 2011
- Act status:
- Active
- Statutory instrument ref:
- 2010 No.93
- Jurisdiction of the Act:
- England and Wales and Scotland only, save as provided for in Schedule 1 (provisions extending to England and Wales, Scotland and Northern Ireland).
- Penalties:
- Compensation payable will be that which is ‘just and equitable’ having regard to the extent of responsibility. There will be no statutory cap on the amount that can be awarded. The legislation states that the minimum amount awarded must be two weeks’ pay. An additional award of up to £5,000 will be awarded if anti-avoidance provisions are breached.
Official description of the Act
The Agency Workers Regulations 2010 came into force on 1 October 2011. The Regulations are intended to give effect to the Temporary Agency Workers Directive 2008/104/EC, which was published on 5 December 2008, and for which EU Member States had until 5 December 2011 to implement its provisions. The objective of the Regulations is to give agency workers the entitlement to the same basic employment and working conditions as a company’s permanent employees.
The new Regulations do not affect the current protection afforded to agency workers and do not change the employment status of agency workers.
The Regulations do not apply to recruitment consultancies that place individuals into permanent roles with third parties. The Regulations apply to agency workers who are assigned to do temporary work for hirers through temporary work agencies.
An agency worker is defined in the Regulations as being someone who:
- is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and
- has a contract with the temporary work agency which is either:
- a contract of employment with the agency; or
- any other contract with the agency to perform work or services personally.
The Regulations do not apply to those who are:
- genuinely self-employed;
- employed under a managed service contract;
- in-house temporary staffing banks; and/or
- on secondments.
A hirer is defined in the Regulations as ‘a person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person.’
Under the Regulations all agency workers have the right to be treated no less favourably than comparable permanent employees or workers in relation to ‘collective facilities and amenities’, unless the less favourable treatment can be objectively justified. This is the only area of the Regulations where failure to follow the Regulations can be justified. Liability for failure to provide this access will be solely on the hirer, as the agency has no role in providing these rights.
Collective facilities include:
- canteen or other similar facilities;
- childcare facilities; and
- transport services.
After completion of the 12-week qualifying period an agency worker is also entitled to ‘the same basic working and employment conditions as they would have been entitled to for doing the same job had they been recruited by the hirer other than by using the services of a temporary work agency, and at the time the qualifying period commenced.’
The basic working and employment conditions are the relevant terms and conditions that are ordinarily included in the contract of employees or workers of the hirer (or associated documents such as a company handbook or collective agreement).
Relevant terms and conditions are those terms relating to:
- pay;
- duration of working time;
- night work;
- rest periods;
- rest breaks; and
- annual leave.
Specific provision is also made in relation to pregnant and nursing mothers for paid time off for antenatal appointments, to be paid by the temporary work agency.
The Regulations are not retrospective; therefore time spent on an assignment prior to 1 October 2011 does not count for the purposes of the qualifying period. Therefore, for existing agency workers these rights will not kick in until 24 December 2011.
