The first two articles in this series looked at the benefits to which agency workers will be entitled, and the relevant qualifying periods for eligibility. This final article focuses on advice for employers and agencies, including anti-avoidance.
Any claim made by an agency worker of unequal treatment will have to be brought in the Employment Tribunal within three months. The most notable remedy in any claim will be compensation. The ET can also order a declaration as to the rights of the agency worker and make a recommendation that the agency or hirer confer the same benefits on agency staff as for permanent employees.
There will be no limit on the value of compensation which can be ordered. In any event there will be a minimum award of two weeks' pay for breach of the right to equal treatment. Unlike discrimination law however, the Tribunal will not have the power to order compensation for injury to feelings.
If an agency worker is dismissed from employment for threatening, bringing or supporting a claim then their dismissal will be automatically unfair; and the usual requirement for twelve months' continuous service won't apply. There is also protection against subjecting an agency worker to a detriment for asserting their rights (in which case the minimum compensation of two week's pay again applies).
An agency supplying a worker will only be liable for a breach "to the extent that it is responsible for that breach". For instance, it will not be liable if it obtained or tried to obtain information about basic working and employment conditions from the hirer, and was reasonable in then applying those conditions to the agency worker's role. In those circumstances liability for any breach automatically passes to the hirer. This is an important point for agencies, they will need to have robust procedures in place and adhere to those procedures or they could incur costly penalties through the bad practice of their clients.
The hirer is always liable for any breach of day one rights, such as access to childcare and canteen facilities and to details of the other vacancies within the company.
Attempts to avoid the Regulations by engaging an agency worker for two or more assignments of less than twelve weeks each, or in two or more substantively different roles with the same hirer, will be open to attack. As will assigning an agency worker to two or more roles with connected hirers in the same group. If the most likely explanation for one of these arrangements is that the hirer or agency is trying to avoid giving the agency worker equal treatment to permanent staff, the worker will automatically become entitled to the right to equal pay and conditions. In those circumstances the Tribunal will be able to award up to £5,000 additional compensation apportioned between the hirer and agency.
Multiple claims by a group of agency temps could be expensive, not to mention the harm a successful claim would cause to the reputation of the company. Agencies and employers alike should therefore review their procedures for supplying or engaging temps now, to reduce the chances of successful claims and irreparable damage later.
James Wilders, partner, Dickinson Dees
