Businesses hiring agency workers must provide them with the same information about relevant vacancies as direct employees, but do not have to allow agency workers to apply for those vacancies on the same terms.
The Agency Workers Regulations 2010 give agency workers a right, from day one of an assignment, 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”. In Angard Staffing Solutions v Kocur, the Employment Appeal Tribunal ruled that this right to information about a vacancy does not encompass a right to apply and be considered for the vacancy on the same terms as directly hired employees. The hirer was therefore entitled to give preference to direct hires by advertising posts internally first and providing that agency workers could not apply unless and until they were advertised externally.
The EAT also held that it was not a breach of the regulations for agency workers to be given different shift lengths, break schedules, availability of overtime, opportunity for training during working hours, or information on payslips when compared with direct hires. These provisions were not covered by the right of agency workers (with 12 weeks’ qualifying service) to the same basic terms and conditions in relation to pay and working time. However, a term relating to when a pay rise was implemented would be covered. The issue was remitted to the tribunal to determine whether there was an implied term in the contracts of directly-hired employees that any pay increase would be implemented within a reasonable period of time and, if so, whether this was breached by implementing the pay rise for agency workers six months later than for direct hires.
Workers supplied by an agency may be entitled to rights under the Agency Workers Regulations 2010 even if they are employed on an indefinite term contract with the agency and have only ever worked for one client on a long-term basis.
The Agency Workers Regulations apply to a worker who “is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer”. In Angard Staffing Solutions v Kocur, the EAT upheld an earlier decision that the focus is on the basis on which the worker is supplied to work for the end-user on each occasion; the overall length of time and the nature of the contract with the agency will not be determinative.
In this case the worker was supplied for a series of short fixed period assignments covering particular shifts, there was no guarantee that he would be called on to work from one week to the next, and there had been some periods of two to three weeks when he had not worked over the four years. He was therefore supplied on a temporary basis and covered by the Agency Workers Regulations.
Hirers of agency workers should consider carefully up front whether and how the Agency Worker Regulations apply and seek to ensure the agency complies, given that a hirer can be held liable for breach and ordered to pay just and equitable compensation even if the agency is also at fault.
In London Underground Ltd v Amissah, LUL initially accepted the agency’s assertion that the ‘Swedish derogation’ applied to workers it supplied, disentitling them from equal pay rights under the Regulations. LUL later changed its view and started paying the agency on the basis that the workers were covered by the Regulations, plus an amount covering the previous underpayment. The agency increased the pay rates to the workers, but failed to hand over the underpayment for the earlier period and subsequently went into liquidation.
The tribunal had found LUL to be 50% responsible for the breach as it had acted too slowly in ensuring the agency rectified the error, and the Court of Appeal has now confirmed that it was appropriate to apportion the compensation to be paid on the same basis, ie 50% to be paid by LUL, notwithstanding that in effect this would mean LUL was paying twice having already given the funds to the agency. Given that it was LUL’s choice to deal with the agency, it (rather than the workers) should bear the burden of the agency’s dishonesty. It would only be in exceptional cases that just and equitable compensation would be less than the amount for which it had been held responsible.
The Government has today published its “vision for the future of the UK labour market”, the Good Work Plan, which builds on its earlier response to the Taylor Review (see our summary here) on the impact of digital platforms on modern working practices and the rights of workers.
This publication sets out what the Government describes as “ambitious” proposals for employment law reform, together with feedback from the four recent consultations on employment status, transparency, agency workers and enforcement.
The Government states that it has accepted the vast majority of the recommendations from the Taylor Review and proposes legislative changes “to ensure that workers can access fair and decent work, that both employers and workers have the clarity they need to understand their employment relationships, and that the enforcement system is fair and fit for purpose”.
The EAT has confirmed that once agency workers have accrued 12 weeks on one assignment, they will be entitled to the same pay and certain terms as comparable permanent employees at the end-user looking at each term individually, and it is not a defence that the agency worker’s overall package is at least as favourable. In this case the employer could not argue that the less favourable holiday and rest break entitlement was compensated by the agency worker’s higher hourly rate of pay.
However, because pay and holiday entitlement are viewed separately, it may be possible to pay the agency worker for the holiday entitlement in a lump sum at the end of the assignment or by identifying that part of the higher hourly pay rate that represents rolled-up holiday pay (in relation to a contractual entitlement in excess of statutory holiday), provided this is transparent and readily comprehensible. (Kocur v Angard Staffing Solutions)
Acas has published new guidance on the rights of agency workers, available here.
The Taylor Review of Modern Working Practices “Good Work” was published yesterday. It considers how technology platforms have impacted working practices and the rights of workers, and examines whether our current legislative and regulatory framework is fit for purpose. The Review focuses on the importance of quality work: “fair and decent work with realistic scope for development and fulfilment” and recommends to the government certain employment and tax reforms.
Employers should note that agency workers may be able to bring whistleblowing claims against both the end-user and the third party introducer. The fact that an individual is a worker for one party does not inevitably prevent them from also being a worker (under the extended definition for whistleblowing purposes) for another party. The Court of Appeal has agreed with an earlier EAT ruling (McTigue, summarised in our blog post here) that an agency worker can be a 'worker' for whistleblowing purposes for both end-user and agency, where between them they have 'substantially determined' the worker's terms. (Day v Health Education England)
Effective 1 April 2017, the legislator has made several amendments to the German Act on Temporary Work (Arbeitnehmerüberlassungesetz). The changes have been awaited for quite some time now and bring several amendments and clarifications of high relevance to all companies that make use of agency workers. The key changes are:
The EAT has confirmed that the reason for a dismissal can be the employee's whistleblowing, even where the decision-maker is unaware of this, if their decision has been manipulated by a manager aware of the protected disclosure and motivated by a desire for retribution.
In Royal Mail Group v Jhuti, the employee's line manager fabricated evidence of poor performance, setting unattainable targets to punish her for whistleblowing. The decision-maker relied on this evidence to justify dismissal; she was aware that the employee had queried another employee's conduct but understood that the employee had retracted the allegations on the basis that it was a misunderstanding. The decision-maker accepted this without interviewing the employee, who was unwell. Although the decision-maker was not aware that there had been a protected disclosure and genuinely considered there to be poor performance, the line manager's motivation in bringing this about had to be taken into account. The dismissal was therefore automatically unfair.