|
|
|
| |
|
|
|
|
|
|
|
|
prohibit
discrimination against temporary and agency workers; to make
|
|
|
provision about the enforcement
of rights of such workers; and for connected |
|
|
|
|
Be
it enacted by the Queen’s most Excellent Majesty,
by and with the advice and |
|
|
consent of the Lords Spiritual
and Temporal, and Commons, in this present |
|
|
Parliament assembled,
and by the authority of the same, as follows:— |
|
|
1 |
Less
favourable treatment of agency workers |
|
|
(1) |
An agency worker has the
right not be treated by the employment business or |
|
|
by the end user less favourably
in respect of his basic working and |
|
|
employment conditions than
a comparable direct worker is or would be |
|
|
|
5 |
(2) |
Subsection (1) above applies
only if— |
|
|
(a) |
the treatment is on the
ground that the worker is an agency worker, and |
|
|
(b) |
the treatment is not justified
on objective grounds. |
|
|
(3) |
In determining whether
the right conferred by subsection (1) has been |
|
|
breached, the pro rata
temporis principle applies where appropriate. |
|
10 |
2 |
Comparable
direct workers |
|
|
(1) |
For the purposes of this
Act, a direct worker is a comparable direct worker in |
|
|
relation to an agency worker
if, at the time when the treatment that is alleged |
|
|
to be less favourable to
the agency worker takes place— |
|
|
(a) |
the other party to the
direct worker's contract is the end user in respect |
|
15 |
|
|
(b) |
both the direct worker
and the agency worker are engaged in the same |
|
|
or broadly similar work,
having regard, where relevant, to whether |
|
|
they have a similar level
of seniority, qualification and skills; and |
|
|
(c) |
the direct worker works
or is based at the same establishment as the |
|
20 |
agency worker or, where
there is no comparable direct worker working |
|
|
or based at that establishment
who satisfies the requirements of |
|
|
| |
|
|
|
|
|
|
|
| |
subsections (a) and (b),
works or is based at a different establishment |
|
|
and satisfies those requirements. |
|
|
(2) |
For the purposes of subsection
(1), it is immaterial whether the direct worker's |
|
|
contract is of open-ended
or fixed duration. |
|
|
(3) |
Where no real comparable
direct worker can be identified, a tribunal |
|
5 |
considering a complaint
under section 1(1) of this Act shall consider how a |
|
|
comparable direct worker
satisfying the requirements of subsection (1) would |
|
|
have been treated having
regard to all the circumstances of the case, |
|
|
|
|
(a) |
any relevant collective
agreements; |
|
10 |
(b) |
the terms and conditions
of direct workers; |
|
|
(c) |
the usual practices of the
employment business and the end user; and |
|
|
(d) |
the treatment of other
direct workers or other former direct workers, as |
|
|
|
|
3 |
Access
to direct employment and protection from unfair treatment |
|
15 |
(1) |
An end user shall inform
all agency workers provided to him of any vacancies |
|
|
for work as a direct worker
in his undertaking. |
|
|
(2) |
Any clause of any contract
between an employment business and |
|
|
|
|
|
20 |
|
is
void and of no effect insofar as it prohibits, prevents, or
has the effect of |
|
|
preventing, an agency worker
becoming a direct worker of the end user. |
|
|
(3) |
An agency worker who is
an employee within the meaning of section 230(1) of |
|
|
the 1996 Act and who is
dismissed (whether by the end user or the employment |
|
|
business) shall be regarded
as unfairly dismissed for the purposes of Part 10 of |
|
25 |
the 1996 Act if the reason
(or if more than one, the principal reason) for the |
|
|
dismissal is a reason specified
in subsection (5). |
|
|
(4) |
An agency worker has the
right not to be subjected to any detriment by any act, |
|
|
or any deliberate failure
to act, of the end user or the employment business |
|
|
done on a ground specified
in subsection (5). |
|
30 |
(5) |
The reasons or, as the
case may be, the grounds are— |
|
|
(a) |
that the agency worker— |
|
|
(i) |
brought proceedings
against the end user or the employment |
|
|
|
|
(ii) |
gave evidence or information
in connection with such |
|
35 |
proceedings brought by
any person; |
|
|
(iii) |
otherwise did anything
under this Act in relation to the end |
|
|
user or the employment
business; |
|
|
(iv) |
alleged that the end
user or the employment business had |
|
|
|
40 |
(v) |
refused (or proposed
to refuse) to forgo a right conferred on him |
|
|
|
|
(b) |
that the end user or employment
business believes or suspects that the |
|
|
agency worker has done or
intends to do any of the things mentioned |
|
|
|
45 |
| |
|
|
|
|
|
| |
(6) |
Subsection
(4) does not apply where the detriment in question amounts to
a |
|
|
dismissal within the meaning
of Part 10 of the 1996 Act which falls within |
|
|
|
|
4 |
Complaints
to employment tribunals, enforcement etc |
|
|
(1) |
The Secretary of State
shall by regulations provide for the enforcement before |
|
5 |
an employment tribunal
of the rights afforded to agency workers by sections |
|
|
1(1), 3(1) and 3(4), the
said regulations to include provision for— |
|
|
(a) |
the right to present a complaint
to an employment tribunal; |
|
|
(b) |
joint and several liability
for any compensation ordered by the |
|
|
employment tribunal as between
the employment business and the end |
|
10 |
user in respect of complaints
under sections 1(1) and 3(4); |
|
|
(c) |
the territorial extent of
the rights; |
|
|
|
|
(e) |
the applicability of the
rights to special classes of employment; |
|
|
(f) |
the necessary and consequential
amendment of legislation. |
|
15 |
(2) |
For the purposes of section
3(3) and section 111 of the 1996 Act, both the |
|
|
employment business and
the end user— |
|
|
(a) |
shall be deemed to be the
employer of the agency worker; and |
|
|
(b) |
shall have joint and several
liability for any award of compensation that |
|
|
might be ordered in respect
of such a complaint. |
|
20 |
(3) |
Section 203 of the 1996
Act (restrictions on contracting out) shall apply in |
|
|
relation to this Act as
if the provisions of this Act were contained in the 1996 |
|
|
|
|
|
|
|
25 |
“the 1996 Act”
means the Employment Rights Act 1996
(c. 18); |
|
|
“agency worker”
means any person who is supplied by an employment |
|
|
business to do work for
another person (“the end user”) under a |
|
|
contract or other arrangements
made between the employment |
|
|
business and the end user; |
|
30 |
“basic working
and employment conditions” means working and |
|
|
employment conditions relating
to— |
|
|
(a) |
the duration of working
time, rest periods, night work, paid |
|
|
holidays and public
holidays; |
|
|
(b) |
pay, including sick
pay; |
|
35 |
(c) |
work done by pregnant
women and nursing mothers, children |
|
|
|
|
(d) |
action taken to combat
discrimination on the grounds of sex, |
|
|
race or ethnic origin,
religion or beliefs, disabilities, age or |
|
|
|
40 |
“comparable direct
worker” shall have the meaning set out in section 2; |
|
|
“direct worker”
means an individual, not being an agency worker, who |
|
|
has entered into or has
worked under— |
|
|
(a) |
a contract of employment;
or |
|
|
(b) |
any other contract,
whether express or implied and (if it is |
|
45 |
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; |
|
|
“employment business”
means the business (whether or not carried on |
|
5 |
with a view to profit and
whether or not carried on in conjunction with |
|
|
any other business) of
supplying persons in the employment of the |
|
|
person carrying on the
business, to act for, and under the control of, |
|
|
other persons in any capacity; |
|
|
“end user”
shall have the meaning ascribed within the definition of |
|
10 |
“agency worker”
within this subsection. |
|
|
“joint and several
liability” shall be construed with reference to the Civil
|
|
|
Liability
(Contribution) Act 1978 (c. 47); |
|
|
“the pro rata temporis
principle” means that where a comparable direct |
|
|
worker receives or is entitled
to receive pay or any other benefit, an |
|
15 |
agency worker is to receive
or be entitled to receive not less than the |
|
|
proportion of that pay
or other benefit that the number of his weekly |
|
|
hours bears to the number
of weekly hours of the comparable direct |
|
|
|
|
6 |
Short
Title, commencement and extent |
|
20 |
(1) |
This Act may be cited
as the Temporary and Agency Workers (Prevention of |
|
|
Less Favourable Treatment)
Act 2007. |
|
|
(2) |
Subject to subsection
(3), the provisions of this Act, shall come into force on |
|
|
such day as the Secretary
of State may by order made by Statutory Instrument |
|
|
appoint; and different
days may be appointed under this subsection for |
|
25 |
|
|
(3) |
The day or days specified
by the Secretary of State under subsection (2) shall |
|
|
not be later than 1 October
2008. |
|
|
(4) |
This Act extends to England,
Northern Ireland, Scotland and Wales. |
|
|
| |
|
|
