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Agency workers and self-employed contractors – when casual workers can become anything but

Neil EmeryOctober 2012


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Agency Workers


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Agency Workers


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Agency Workers

1 October 2011


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Day one rights

• Collective facilities• Information about employment vacancies


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Rights after 12 weeks

• Same pay and basic working conditions as equivalent permanent staff


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Qualifying period

• 12 weeks in the same role (ignoring change of agency)• No minimum amount of work to be completed• “In the same role” - change of position requires re-

qualifying• The whole or main part of the role must be

“substantively different”• Agency must notify worker of new role in writing• Breaks between assignments of less than six weeks

e.g. if returning to a role


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Qualifying period

• Breaks beyond six weeks preserving continuity:– sickness up to 28 weeks– temporary cessation of work– jury service– statutory or contractual entitlement to time off– strike / lock out

• Pregnancy or adoption leave breaks count towards the qualifying period

• Once qualified, the worker remains eligible for equal treatment until broken


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Anti-avoidance

• Worker has completed two or more assignments with a hirer

• Worker has completed one or more assignments with a hirer with hirers associated with that hirer

• Worker has worked in more than two different roles with the hirer


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Agency Workers

So the implications are:• Higher agency costs• Less experienced agency workers• If a deliberate attempt to frustrate or

prevent qualification, employment tribunal can award compensation of up to £5,000 (minimum 2 weeks’ pay)


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Action Points

• Audit of agency staff • Skills matrices • Standard terms and conditions of

employment, pay scales and annual leave entitlements

• Mechanism to keep track of agency workers


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Action Points

• Short assignments (of no more than 12 weeks)

• Roles with no directly recruited comparator • Swedish derogation?


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Self-employed


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Self-employed

• Personal service

• Mutuality of obligation

• Control

• “Other factors”


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Risks

• Unfair dismissal

• Notice pay

• Discrimination

• Tax and National Insurance


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Action Points

• Assess overall nature of the relationship

• Ensure that contract reflects actual relationship

• Keep situation under review


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Contact

• Neil Emery

01622 698047

[email protected]

Documents

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