Legal Ease

• the main rate for workers aged 21 and over increased to £6.08


• the 18-20 rate increased to £4.98


• the 16-17 rate for workers above school leaving age but under 18 increased to £3.68


• the apprentice rate, for apprentices under 19 or 19 or over and in the first year of their apprenticeship increased to £2.60

Labels: National Minimum Wage - 1 October 2011

THE AGENCY WORKERS REGULATIONS 2010 CAME INTO FORCE ON 1 OCTOBER 2011.

The Agency Workers Regulations 2010 provide that agency workers working for the same hirer for more than 12 weeks will be entitled to equal treatment in certain basic terms and conditions, including pay, as directly recruited employees of the hirer doing the same job. This right kicks in after the agency worker has served a 12 week qualifying period with the end-user.

The Regulations also give agency workers certain “day one” rights, including the same access to job vacancies as permanent members of staff and collective facilities such as staff canteens, childcare facilities and transport services - from the first day of their assignment.

Although some absences will have the effect of breaking service, certain breaks taken by the agency worker will only pause the time during which the worker accrues service during the qualification period. Breaks between assignments with the same organisation will pause the clock if they last for six weeks or less. Some other absences, such as sickness absence, jury service and annual leave, will also pause the clock.

Where the most likely explanation for the structure of a series of assignments is that the agency or the hirer is attempting to avoid the impact of the Regulations, it is likely to fall foul of the anti-avoidance provisions.

An example of where assignments of less than 12 weeks could fall within the anti-avoidance provisions is where an agency worker works two assignments of 10 weeks each with a gap of seven weeks between them (so they are not linked for the purposes of calculating the 12-week period) and is then, after a further seven-week gap, invited back for a third assignment and the Employment Tribunal considers that the most likely explanation for this structure is to avoid the impact of the Regulations.

The anti-avoidance provisions apply only where there is a series of assignments or changes of role. Therefore, they would not prevent a policy of using agency workers for assignments of less than 12 weeks, if the same agency workers are not subsequently rehired for a further assignment.

Labels: Agency Workers Regulations 2010