The Agency Workers Regulations 2010

Made: 20th January 2010

Laid before Parliament: 21st January 2010

Coming into force: 1st October 2011

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to employment rights and duties .

The Secretary of State makes these Regulations—in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and sections 15(1), (2) and (5) and 82(3) of, and paragraphs 7, 8 and 15(1) of Schedule 3 to, the Health and Safety at Work etc Act 1974 , (“the 1974 Act”); and independently of any proposals submitted by the Health and Safety Executive under section 11(3) of the 1974 Act.

The Secretary of State makes these Regulations—

in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and sections 15(1), (2) and (5) and 82(3) of, and paragraphs 7, 8 and 15(1) of Schedule 3 to, the Health and Safety at Work etc Act 1974 , (“the 1974 Act”); and

independently of any proposals submitted by the Health and Safety Executive under section 11(3) of the 1974 Act.

The Secretary of State has consulted the Health and Safety Executive and such other bodies as appear to the Secretary of State to be appropriate, as required by section 50(1AA) of the 1974 Act .

PART 1 — General and Interpretation

Citation, commencement and extent

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• (1) These Regulations may be cited as the Agency Workers Regulations 2010 and shall come into force on 1st October 2011.

• (2) These Regulations extend to England and Wales and Scotland only, save as provided for in Schedule 1 (provisions extending to England and Wales, Scotland and Northern Ireland).

Interpretation

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In these Regulations—

• “the 1996 Act” means the Employment Rights Act 1996 ;

• “assignment” means a period of time during which an agency worker is supplied by one or more temporary work agencies to a hirer to work temporarily for and under the supervision and direction of the hirer;

• “contract of employment” means a contract of service or of apprenticeship, whether express or implied, and (if it is express) whether oral or in writing;

• “employee” means an individual who has entered into or works under or, where the employment has ceased, worked under a contract of employment;

• “employer”, in relation to an employee or worker, means the person by whom the employee or worker is (or where the employment has ceased, was) employed;

• “employment”—in relation to an employee, means employment under a contract of employment, andin relation to a worker, means employment under that worker's contract,and “employed” shall be construed accordingly;

• “hirer” means a person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person; and

• “worker” means an individual who is not an agency worker but who has entered into or works under (or where the employment has ceased, worked under)—a contract of employment, orany other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual,and any reference to a worker's contract shall be construed accordingly.

The meaning of agency worker

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• (1) In these Regulations “agency worker” means an individual who—

• (a) is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and

• (b) has a contract with the temporary work agency which is—

• (i) a contract of employment with the agency, or

• (ii) any other contract with the agency to perform work or services personally.

• (2) But an individual is not an agency worker if—

• (a) the contract the individual has with the temporary work agency has the effect that the status of the agency is that of a client or customer of a profession or business undertaking carried on by the individual; or

• (b) there is a contract, by virtue of which the individual is available to work for the hirer, having the effect that the status of the hirer is that of a client or customer of a profession or business undertaking carried on by the individual.

• (3) For the purposes of paragraph (1)(a) an individual shall be treated as having been supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer if—

• (a) the temporary work agency initiates or is involved as an intermediary in the making of the arrangements that lead to the individual being supplied to work temporarily for and under the supervision and direction of the hirer, and

• (b) the individual is supplied by an intermediary, or one of a number of intermediaries, to work temporarily for and under the supervision and direction of the hirer.

• (4) An individual treated by virtue of paragraph (3) as having been supplied by a temporary work agency, shall be treated, for the purposes of paragraph (1)(b), as having a contract with the temporary work agency.

• (5) An individual is not prevented from being an agency worker—

• (a) because the temporary work agency supplies the individual through one or more intermediaries;

• (b) because one or more intermediaries supply that individual;

• (c) because the individual is supplied pursuant to any contract or other arrangement between the temporary work agency, one or more intermediaries and the hirer;

• (d) because the temporary work agency pays for the services of the individual through one or more intermediaries; or

• (e) because the individual is employed by or otherwise has a contract with one or more intermediaries.

• (6) Paragraph (5) does not prejudice the generality of paragraphs (1) to (4).

The meaning of temporary work agency

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• (1) In these Regulations “temporary work agency” means a person engaged in the economic activity, public or private, whether or not operating for profit, and whether or not carrying on such activity in conjunction with others, of—

• (a) supplying individuals to work temporarily for and under the supervision and direction of hirers; or

• (b) paying for, or receiving or forwarding payment for, the services of individuals who are supplied to work temporarily for and under the supervision and direction of hirers.

• (2) Notwithstanding paragraph (1)(b) a person is not a temporary work agency if the person is engaged in the economic activity of paying for, or receiving or forwarding payments for, the services of individuals regardless of whether the individuals are supplied to work for hirers.

PART 2 — Rights

Rights of agency workers in relation to the basic working and employment conditions

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• (1) Subject to regulation 7, an agency worker (A) shall be entitled to the same basic working and employment conditions as A would be entitled to for doing the same job had A been recruited by the hirer—

• (a) other than by using the services of a temporary work agency; and

• (b) at the time the qualifying period commenced.

• (2) For the purposes of paragraph (1), the basic working and employment conditions are —

• (a) where A would have been recruited as an employee, the relevant terms and conditions that are ordinarily included in the contracts of employees of the hirer;

• (b) where A would have been recruited as a worker, the relevant terms and conditions that are ordinarily included in the contracts of workers of the hirer,

whether by collective agreement or otherwise, including any variations in those relevant terms and conditions made at any time after the qualifying period commenced.

• (3) Paragraph (1) shall be deemed to have been complied with where—

• (a) an agency worker is working under the same relevant terms and conditions as an employee who is a comparable employee, and

• (b) the relevant terms and conditions of that comparable employee are terms and conditions ordinarily included in the contracts of employees, who are comparable employees of the hirer, whether by collective agreement or otherwise.

• (4) For the purposes of paragraph (3) an employee is a comparable employee in relation to an agency worker if at the time when the breach of paragraph (1) is alleged to take place—

• (a) both that employee and the agency worker are—

• (i) working for and under the supervision and direction of the hirer, and

• (ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills; and

• (b) the employee works or is based at the same establishment as the agency worker or, where there is no comparable employee working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.

• (5) An employee is not a comparable employee if that employee's employment has ceased.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Relevant terms and conditions

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• (1) In regulation 5(2) and (3) “relevant terms and conditions” means terms and conditions relating to—

• (a) pay;

• (b) the duration of working time;

• (c) night work;

• (d) rest periods;

• (e) rest breaks; and

• (f) annual leave.

• (2) For the purposes of paragraph (1)(a), “pay” means any sums payable to a worker of the hirer in connection with the worker's employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under contract or otherwise, but excluding any payments or rewards within paragraph (3).

• (3) Those payments or rewards are—

• (a) any payment by way of occupational sick pay;

• (b) any payment by way of a pension, allowance or gratuity in connection with the worker's retirement or as compensation for loss of office;

• (c) any payment in respect of maternity, paternity, parental bereavement or adoption leave;

• (d) any payment referable to the worker's redundancy;

• (e) any payment or reward made pursuant to a financial participation scheme;

• (f) any bonus, incentive payment or reward which is not directly attributable to the amount or quality of the work done by a worker, and which is given to a worker for a reason other than the amount or quality of work done such as to encourage the worker's loyalty or to reward the worker's long-term service;

• (g) any payment for time off under Part 6 of the 1996 Act or section 169 of the Trade Union and Labour Relations (Consolidation) Act 1992 (payment for time off for carrying out trade union duties etc);

• (h) a guarantee payment under section 28 of the 1996 Act;

• (i) any payment by way of an advance under an agreement for a loan or by way of an advance of pay (but without prejudice to the application of section 13 of the 1996 Act to any deduction made from the worker's wages in respect of any such advance);

• (j) any payment in respect of expenses incurred by the worker in carrying out the employment; and

• (k) any payment to the worker otherwise than in that person's capacity as a worker.

• (4) For the purposes of paragraphs (2) and (3) any monetary value attaching to any payment or benefit in kind furnished to a worker by the hirer shall not be treated as pay of the worker except any voucher or stamp which is—

• (a) of fixed value expressed in monetary terms, and

• (b) capable of being exchanged (whether on its own or together with other vouchers, stamps or documents, and whether immediately or only after a time) for money, goods or services (or for any combination of two or more of those things).

• (5) In this regulation—

• “financial participation scheme” means any scheme that offers workers of the hirer—a distribution of shares or options, ora share of profits in cash or in shares;

• “night time”, in relation to an individual, means—a period—the duration of which is not less than seven hours, andwhich includes the period between midnight and 5 a.m.,which is determined for the purposes of these Regulations by a working time agreement, orin default of such a determination, the period between 11 p.m. and 6 a.m.;

• “night work” means work during night time;

• “relevant training” means work experience provided pursuant to a training course or programme, training for employment, or both, other than work experience or training—the immediate provider of which is an educational institution or a person whose main business is the provision of training, andwhich is provided on a course run by that institution or person;

• “rest period”, in relation to an individual, means a period which is not working time, other than a rest break or leave to which that individual is entitled either under the Working Time Regulations 1998 or under the contract between that individual and the employer of that individual;

• “working time”, in relation to an individual means—any period during which that individual is working, at the disposal of the employer of that individual and carrying out the activity or duties of that individual,any period during which that individual is receiving relevant training, andany additional period which is to be treated as working time for the purposes of the Working Time Regulations 1998 under a working time agreement; and

• “working time agreement”, in relation to an individual, means a workforce agreement within the meaning of regulation 2(1) of the Working Time Regulations 1998, which applies to the individual any provision of—a collective agreement which forms part of a contract between that individual and the employer of that individual, orany other agreement in writing which is legally enforceable as between the individual and the employer of that individual.

Qualifying period

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• (1) Regulation 5 does not apply unless an agency worker has completed the qualifying period.

• (2) To complete the qualifying period the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments.

• (3) For the purposes of this regulation and regulations 8 and 9, the agency worker works in “the same role” unless—

• (a) the agency worker has started a new role with the same hirer, whether supplied by the same or by a different temporary work agency;

• (b) the work or duties that make up the whole or the main part of that new role are substantively different from the work or duties that made up the whole or the main part of the previous role; and

• (c) the temporary work agency has informed the agency worker in writing of the type of work the agency worker will be required to do in the new role.

• (4) For the purposes of this regulation ..., any week during the whole or part of which an agency worker works during an assignment is counted as a calendar week.

• (5) For the purposes of this regulation and regulations 8 and 9, when calculating whether any weeks completed with a particular hirer are continuous, where—

• (a) the agency worker has started working during an assignment, and there is a break, either between assignments or during an assignment, when the agency worker is not working,

• (b) paragraph (8) applies to that break, and

• (c) the agency worker returns to work in the same role with the same hirer,

any continuous weeks during which the agency worker worked for that hirer before the break shall be carried forward and treated as continuous with any weeks during which the agency worker works for that hirer after the break.

• (6) For the purposes of this regulation and regulation 8, when calculating the number of weeks during which the agency worker has worked, where the agency worker has—

• (a) started working in a role during an assignment, and

• (b) is unable to continue working for a reason described in paragraph (8)(c) or (8)(d)(i), (ii) or (iii),

for the period that is covered by one or more such reasons, that agency worker shall be deemed to be working in that role with the hirer, for the original intended duration, or likely duration of the assignment, whichever is the longer.

• (7) Where—

• (a) an assignment ends on grounds which are maternity grounds within the meaning of section 68A of the 1996 Act, and

• (b) the agency worker is deemed to be working in that role in accordance with paragraph (6),

the fact that an agency worker is actually working in another role, whether for the same or a different hirer during the period mentioned in paragraph (6) or any part of that period, does not affect the operation of that paragraph.

• (8) This paragraph applies where there is a break between assignments, or during an assignment, when the agency worker is not working, and the break is—

• (a) for any reason and the break is not more than six calendar weeks;

• (b) wholly due to the fact that the agency worker is incapable of working in consequence of sickness or injury, and the requirements of paragraph (9) are satisfied;

• (c) related to pregnancy, childbirth or maternity and is at a time in a protected period;

• (d) wholly for the purpose of taking time off or leave, whether statutory or contractual, to which the agency worker is otherwise entitled which is—

• (i) ordinary, compulsory or additional maternity leave;

• (ii) ordinary or additional adoption leave;

• (iii) paternity leave;

• (iv) time off or other leave not listed in sub-paragraph (d)(i), (ii) or (iii); or

• (v) for more than one of the reasons listed in sub-paragraph (d)(i) to (iv);