A new statutory instrument, the Agency Workers (Amendment) Regulations 2011 have been made by the government to correct some drafting errors in the original Regulations.
The Regulations, which come into force on 1 October 2011, provide that agency workers will have the same rights to pay, benefits, rest periods and holidays as someone recruited directly by the hirer (including the hirer's own directly recruited temporary workers and employees).
There is a 12 week qualifying period, so genuine short-term agency temps will not qualify for this right. The 12 weeks do not have to be continuous; there can be breaks between assignments and absences on grounds of such matters as sickness or jury service.
The corrections are as follows:
- the definition of 'agency worker' is changed from requiring the agency worker to have a contract with the agency which is either an employment contract or "any other contract to perform work and services personally for the agency" to "any other contract with the agency to perform work or services personally". The change clarifies that the worker does not need to be working for the agency itself;
- the so-called 'Swedish Derogation' is clarified by removing another minor drafting error (the Swedish Derogation relates to the opt-out clause negotiated by the Swedish delegation when the Agency Workers Directive was debated at EU level. To put it simply, it means that the rights to equal pay of an agency worker no longer exist when agency workers are employed on a permanent basis by their umbrella company or temporary work agency and receive pay in-between assignments.); and
- tweaking the statutory defence provided in the Regulations , enabling a work agency to avoid liability for breach of the Regulations by a hirer when the agency takes reasonable steps to obtain information about the hirer’s terms and conditions.
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