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Timing• EU Directive – deadline for implementation 5 December 2011• Regulations laid before Parliament 21 January 2010• Implementation 1 October 2011• Conservative election manifesto suggested “gold-plating” to be removed – but ultimately confirmed would go ahead as planned• Guidance (final version) 2 June 2011
Key principlesDay 1 Access to facilities and vacancies: Hirer (although Includes canteen & similar facilities, arguable claim child care & transport services – subject may also be to objective justification brought against agency) Notify vacanciesAfter 12 Equal treatment as if hired by hirer to do Agency: butweeks the same job – basic working conditions reasonable & pay steps defence HirerOther Must provide information to employee Hirer reps about use of temps on redundancies, TUPE transfers etc.
Which workers are covered?Individual supplied Worker engaged by agency to work under contract to under hirer’s Employee of agency perform work direction and personally supervision Not: if genuinely self-employed – Includes use of Personal Service operatingprofession/business intermediaries Companies? undertaking
Managed service arrangements• Agency defined as person engaged in the business of supplying individuals to work temporarily for and under the direction and supervision of hirers• Probably doesn’t have to be core business• Genuine managed service where provider supervises employees – not caught
The equal treatment principle – Reg 5• Right to same basic working conditions for doing the same job if had been hired directly by hirer• Relevant terms: those relating to pay, holiday and working time• The terms that are ordinarily included in contracts of employees/workers of hirer – whether by collective agreement or otherwise• Deemed to comply if working under same relevant terms and conditions as comparable employee, and on same terms as ordinarily included in contracts of comparable employees
When does the equal treatment principle apply?• After 12 calendar weeks• Breaks – assignments linked unless at least 6 week break• Change of role re-starts the clock – if separate & substantively different duties• Special rules for holiday, sickness (of up to 28 weeks) etc. during an assignment – effectively the pre and post periods are linked• Time spent on maternity leave / paternity leave / pregnancy related absence – deemed to be working for the original duration• Pre October 2011 time does not count
Anti avoidance provision• Where worked for a hirer for 2 + assignments• Or worked 1 assignment each with hirer and connected hirer• Or worked more than 2 roles with hirer• Deemed to qualify where “most likely explanation” for structure is avoidance of ETP• Additional compensation – up to £5,000
What is covered by the equaltreatment right? Holiday – But can pay Contractual in lieu of contractual & WT Regs elementOther working time Overtimerights – contractual duration of work, & WT Regs night work, rest periods & breaks Pay
What is meant by pay?Any sums As if had Not a termpayable by been byhirer under employee (or termcontract or worker) of comparison? otherwise hirer And vouchers with monetaryMost cash value But not …payments exchangeable for goods/cash/ services
What is NOTincluded in pay? Sick/maternity/ Pension,Redundancy retirement paternity/ pay payments adoption payPayments for Some statutory loss Benefits in kind payments (e.g. time of office off for union duties) Distribution of “Financial shares, options or Loans participation share of profits in schemes” cash/shares
Bonuses – whenare they covered?A Bonus, incentive or reward “not directly Not attributable to amount/quality of work… covered given for a reason other than amount/quality of work” e.g. encouraging loyalty/reward long serviceB Would not be payable if had been an Not employee of hirer e.g. leavers coveredC Bonuses linked to amount or quality of Yes work – piecework, sales bonus, some performance bonuses
Mixed bonuses- Truly discretionary: not covered at all- BUT: most are not entirely discretionary?- Mix of company and individual performance and retention – does it fall into the exemption: - not attributable to the amount or quality of work AND given for another reason other than amount/quality
Pay: the permanentcontract exclusion• Agency pays minimum pay between assignments: at least 50%• Permanent written contract before assignment began covering pay, hours, locations & nature of work and fact that individual won’t have equal treatment rights• Agency looks for work between assignments & offers to hirers with suitable roles• Agency cannot terminate until complied with requirement to pay & look for work for aggregate of 4 weeks
Who is the worker compared to?- Focus of the comparison is on: what conditions would apply if worker had been hired by the hirer to do the same job: - The terms that are ordinarily included in contracts of employment of the hirer – any standard approach to pay and conditions in contracts, collective agreements- If comparable worker is paid the same, and is on terms ordinarily applied to comparable workers, that is a complete defence: - Same or broadly similar work, having regard (where relevant) to qualifications and skills - At the same establishment (or another if no one comparable at that establishment)
What is comparable treatment? If employer has Pay at appropriate pointstandard pay scale/ of scale/at going rate, structure or there taking account of experience is a “going rate”
What is comparable treatment? No need No pay scales to match or going rate or pay. comparableemployee/worker But may Pay always need to individually match negotiated, & no holiday ifcustom & practice that is standard
Day 1: Access tocollective facilities and amenities Canteen Childcare Transport Other? Objective Justification Guidance
Access to vacancies- Right to be notified – “to give same opportunity to find employment”- Includes internal vacancies that are never advertised externally – if a comparable worker would have been made aware- Can use normal routes e.g. intranet/notice board – if that is how a comparable worker would have found out- Right to know about the vacancy - Not a separate right to be considered? - Guidance to be issued on restructuring/headcount freeze
Right to receive information – Reg 16- After 12 weeks on job, worker can make request to agency for statement of hirer’s basic employment conditions and terms, and how comparator was determined- Information to be provided within 28 days- If not received within 30 days, can be requested directly from hirer- Similar right to request information from hirer from Day One in relation to job vacancies information/facilities- Tribunal has right to draw inferences- Can also proceed directly to Tribunal claim – no penalty
Liability and enforcement – Reg 14- Reg 5: Agency and hirer can be liable to the extent each is responsible- Agency has reasonable steps defence- 3 month time limits and just & equitable extension- Just and equitable compensation, taking into account any loss (2 week minimum for Reg 5)
Enforcement- Power to make recommendations- 3 months time limit- Rules on calculating the relevant date- Detriment/unfair dismissal protection for workers who have raised/enforced their Regulation rights
Maternity andante-natal careTime off for ante-natal care Right to be offered alternative if suspended on maternity grounds
Practical preparation √ Audit current use of temps and the cost. How do their terms compare in practice – will you be able to rely on the deemed comparator? √ What mechanism/process would you apply to decide who is comparable/what terms would be if hired directly? Control over business use of temps – role for agency? √ Defining bonus – in or out? If it could be covered, how will it be assessed in practice? √ Other pay & allowances? Performance related salary reviews? √ Is it feasible to rely on permanent contract exclusion?
Practical preparation √ System for providing information to agencies: what will agency expectations be? √ Control over agency responses to workers? √ What facilities are covered? Do you give access anyway? √ Access to information re vacancies – how are these posted, and are there any that aren’t? Are there any groups of workers without intranet access? √ Capturing information for employee consultation √ Review existing agency terms
“ParticipantQuestion Time” Use the ‘hands-up button to alert me to your question Be sure to have a working microphone so that we can hear you Don’t want to talk? then simply type a question into the chat box and I will ask this on your behalf
Future PVHRWebinars • We now run webinars on a range of different subjects • Write to me if you would like more details firstname.lastname@example.org • Thank you for participating and ….
Thank you to our guestspeaker – Sian Hughes - Jon If you run webinars and want to learn how to create the most effective ‘voice’ for this kind of online activity for yourself, then perhaps some vocal coaching and guidance might be of use? Contact : webinars@UListen2.TV UListen2.TV
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