Agency Workers Regulations - Fact Sheet 3
This is the next in the series of Fact Sheets provided by Hewitson Walker to give you an insight into the Agency Workers’ Regulations that will enable you to begin to plan ahead by determining the potential impact on your business well before the effective date of 1st October 2011.
Although the official Guidance may not be available until the end of 2010, we believe there is sufficient information in the current Regulations to identify the potential issues you and your labour provider may face.
How will complaints about unequal treatment be made?
After their qualifying period, a temporary worker has the right to request from their agency details of how their pay and conditions have been determined and details of your comparable employee (if any) with whom parity is fixed.
If the agency does not respond within 28 days the worker can come to you for the same information.
Neither have the legal duty to respond but failure to provide the information will be regarded adversely should a claim be made.
If the worker still believes they have not received their entitlement, they must make a claim though the Employment Tribunal system, usually within 3 months of the assignment.
The claim may be against their agency, you as the hirer or any others in the chain, for example a Master Vendor or
Umbrella company, who might be responsible for the detriment. In practice, it is likely to be all the parties involved!
Informal conciliation, or the services of ACAS, might provide resolution, particularly if all the information is on hand and provided promptly but, as with any Employment Tribunal claim, not adhering to procedure will disadvantage a defence.
Both the claimant and any witnesses, such as potential comparators, may not be victimised at any time.
Who is liable?
The Employment Tribunal will assign the liability to whichever organisation(s) it decides has caused the disadvantage to the worker. If the agency can show that it has made all reasonable efforts to establish and apply equal treatment, then the liability must lie with the hirer or some other part of the chain.
What are the penalties?
The immediate award will be to make up the difference (as with National Minimum Wage claims) with a minimum level of 2 weeks’ wages but if "injury to feelings" is claimed, there is little limit to the level of award the Employment Tribunal may make.
Should the Employment Tribunal decide that assignments have been deliberately structured to avoid the Regulations, an additional £5,000 penalty can be applied.
How can I find out more about the implications of the Agency Workers’ Regulations?
As soon as the Guidance is available, a further series of fact sheets will be produced, to give you the latest information upon which to base your implementation plans for 2011.
What can I do next?
Hewitson Walker will be pleased to work with you to begin to assess what, if any, impact the Regulations may have on your business. To get in touch with Hewitson Walker please e-mail: Carlo.Ventisei@hewitsonwalker.com.
This Hewitson Walker publication provides information on legal issues and developments of interest to our clients and friends. The material is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters
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