Consult HR EMPLOYMENT UPDATE - 06.12.11

Are You Ready For The Agency Workers Regulations (NI) 2011?

The Agency Workers Regulations (NI) 2011 came into effect in Northern Ireland on 5th December 2011. If you use staff from recruitment agencies within your business, you should be aware of the changes which will impact on your business.

The purpose of these regulations is to provide equal treatment in terms of pay and working time to agency workers who undertake the same, or broadly similar work with those working in the organisation they are hired into.

It is also important to note that these regulations DO NOT change the status of agency staff, they remain as ‘workers’ (unless the Swedish derogation model is used which will be explained later in this update).

BASIC RIGHTS

Agency workers will be entitled to the same ‘basic working employment conditions’ as he/she would be entitled to for doing the same job as if they had been recruited directly by the hirer. (Examples of what constitutes basic rights are provided below).

Agency workers will be entitled to some basic rights from day 1, and there will be additional basic right entitlements once the agency worker has completed a 12 week assignment with the same hirer.

To exercise their rights, the agency worker must be able to have a comparator within the business who carries out the same or broadly similar job as them, and who receives more generous rights than they do. They cannot use hypothetical or predecessor comparators, the comparator must be a ‘flesh and blood’ comparator.

DAY 1 RIGHTS

The agency workers must be afforded the following rights by the hirer from day 1:-

• Be informed of up and coming relevant vacant posts with hirer.
• Rights to collective facilities and amenities provided by hirer eg canteen, childcare, transport, showers, common rooms, prayer rooms, mother and baby room, car parking.

If the hirer does not comply with these obligations, they must be able to be objectively justified why they failed to comply. Within the regulations it specifically states that failing to afford these rights because of ‘cost’ reasons on their own will not be deemed as a reasonable justification.

One example of a reasonable justification could be:-
In situations where employees within the hirer’s company are at risk of potential redundancy, the hirer would be able to objectively justify that they did not inform agency workers of vacant posts in an attempt to secure employment within their existing employees in the business.

BASIC RIGHTS AFTER 12 WEEKS

The agency worker must work in the same role, with the same hirer for 12 continuous calendar weeks, during one or more assignments to be entitled to the 12 week basic rights. The agency worker is then entitled to the same benefits as a comparator doing the same or broadly similar job, these benefits include the following:-

• Pay – This includes same basic pay, overtime payments, shift and unsocial hours allowance, risk payments, annual leave payments, bonus or commission payments directly in relation to amount or quality of work done by an individual.
• Duration of working time – more generous holidays or rest breaks or payments in lieu.
• Night Work Payments – in cases were a comparator receives more generous payment.
• Rest periods and rest breaks – if the comparator receive more generous rest or breaks.
• Paid time off to attend ante-natal appointments and medical suspension.

The liability for ensuring the 12 week basic rights are complied with lies with the Employment Agency. However if the hirer has not provided the right information to the Employment Agency, the liability switches to the hirer.

12 WEEK QUALIFICATION PERIOD

There are many rules around the accrual of the 12 week qualification period. The agency worker DOES NOT have to work the 12 weeks continuously without a break to accrue the 12 week qualification period. There can be breaks of specific periods of time which allows the previous weeks worked with the same hirer to be counted towards the 12 weeks and there can also be situations where the accrual pauses. See below for guidance :-

• Time continues to accrue during maternity, paternity, dependents leave
• Time pauses for :– approved annual leave, sick leave, jury service, shut downs
• If the agency worker has had a 6 week break or more between assignments means the accrual goes back to ‘zero’. If it is less than 6 weeks, the accrual was paused and continues accruing from the week they left off.

Eg If an agency worker worked for 5 weeks, did not work for the hirer for the next 4 weeks and then returned to the same job after the 4 weeks, they start their 2nd period of work with 4 weeks already accrued towards the 12 week qualifying period.

However if an agency worker worked for 5 weeks, was not required for the next 7 weeks and then returned to the same job, they start back at zero with no weeks accrued towards the 12 week qualifying period.

As the regulations only come into force in Northern Ireland on 5th December 2011, the clock only starts ticking at day 1 on 5th December even if the agency worker was working previously before this date, previous work will not be taken into account prior to 5th December.

SWEDISH DEROGATION

Under these regulations there is what is called the ‘Swedish Derogation’, this is when the employment agency directly employ the agency worker.

This entitles the agency work to pay between work assignments from the Recruitment Agency.

Therefore in these situations the agency worker cannot seek pay parity of a comparator within the hirers company.

WHO IS EXCLUDED FROM THESE REGULATIONS

There are particular groups of workers who are not covered under these regulations such as:-

• Self employed
• In-house casual workers or bank staff
• Those who find direct employment through Recruitment Agencies

ANTI-AVOIDANCE OF THE REGULATIONS

The enforcing body for anti-avoidance are Officers from DEL.

Companies may be fined if they are found to be purposely trying to avoid the rights within the regulations.

WHAT ARE THE POTENTIAL CLAIMS

There are fines of £5,000 for anti-avoidance.

If the worker is not happy with the treatment and believes that they did not receive the benefits entitled to them in relation to a relevant comparator, they can lodge proceedings thorough the Industrial Tribunal system against either the hirer or the Employment Agency or both.

Generally the Employment Agency will be liable regarding Industrial Tribunal claims but the hirer can be liable for failure to provide the correct information.

The timeline for such claims is 3 months from the date the detriment was suffered.

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This update is brought to you by CONSULT HR. We are a professional consultancy company who supports companies with HR and employment issues such as Contracts of employment, Handbooks, Policies and Procedures, Recruitment & Selection, Redundancy, Fair Employment – Annual returns and article 55, Absence Management, Performance Management, Discipline & Grievance, TUPE and Equal Opportunities. This support is provided by a designated HR Professional who provides professional advice, guidance and on site support. For further information or to arrange a meeting to find out further information about the service contact Julie Pollock on 07858089006 or email:- julie@consulthr.co.uk or website www.consulthr.co.uk