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provide
for the protection of temporary and agency workers; to require the
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principle of equal treatment to
be applied to temporary and agency workers;
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to make provision about the enforcement
of rights of temporary and agency
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workers; and for connected purposes.
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Be
it enacted by the Queen’s most Excellent Majesty, by
and with the advice and
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consent of the Lords Spiritual
and Temporal, and Commons, in this present
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Parliament assembled, and by
the authority of the same, as follows:—
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1
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Equal
treatment of agency workers
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(1)
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An agency worker has the right
not be treated by the employment business, or
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employment agency, or by the
end user less favourably in respect of his basic
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working and employment conditions
than a comparable direct worker is or
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5
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(2)
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Subsection (1) above applies
only if—
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(a)
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the treatment is on the ground
that the worker is an agency worker, and
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(b)
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the treatment is not justified
on objective grounds.
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(3)
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In determining whether the right
conferred by subsection (1) has been
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breached, the pro rata temporis
principle applies where appropriate.
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10
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2
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Comparable
direct workers
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(1)
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For the purposes of this Act,
a direct worker is a comparable direct worker in
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relation to an agency worker
if, at the time when the treatment that is alleged
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to be less favourable to the
agency worker takes place—
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(a)
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the other party to the direct
worker's contract is the end user in respect
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15
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(b)
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both the direct worker and the
agency worker are engaged in the same
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or broadly similar work, having
regard, where relevant, to whether
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they have a similar level of seniority,
qualification and skills; and
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(c)
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the direct worker works or is
based at the same establishment as the
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20
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agency worker or, where there
is no comparable direct worker working
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or based at that establishment
who satisfies the requirements of
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paragraphs (a) and (b), works
or is based at a different establishment
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and satisfies those requirements.
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(2)
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For the purposes of subsection
(1), it is immaterial whether the direct worker's
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contract is of open-ended or
fixed duration.
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(3)
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Where no real comparable direct
worker can be identified, a tribunal
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5
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considering a complaint under
section 1(1) shall consider how a comparable
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direct worker satisfying the
requirements of subsection (1) would have been
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treated having regard to all
the circumstances of the case, including—
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(a)
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any relevant collective agreements;
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(b)
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the terms and conditions of direct
workers;
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10
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(c)
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the usual practices of the employment
business, or employment
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agency, and the end user; and
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(d)
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the treatment of other direct
workers or other former direct workers, as
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3
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Access
to direct employment and protection from unfair treatment
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15
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(1)
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An end user shall inform all
agency workers provided to him of any vacancies
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for work as a direct worker in
his undertaking.
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(2)
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Any clause of any contract between
an employment business, or employment
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20
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is
void and of no effect insofar as it prohibits, prevents, or has
the effect of
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preventing, an agency worker
becoming a direct worker of the end user.
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(3)
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An agency worker who is an employee
within the meaning of section 230(1) of
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the 1996 Act and who is dismissed
(whether by the end user or the employment
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25
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business, or employment agency)
shall be regarded as unfairly dismissed for
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the purposes of Part 10 of the
1996 Act if the reason (or if more than one, the
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principal reason) for the dismissal
is a reason specified in subsection (5).
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(4)
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An agency worker has the right
not to be subjected to any detriment by any act,
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or any deliberate failure to
act, of the end user or the employment business, or
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30
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employment agency, done on a
ground specified in subsection (5).
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(5)
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The reasons or, as the case may
be, the grounds are—
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(a)
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that the agency worker—
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(i)
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brought proceedings against
the end user or the employment
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business, or employment agency,
under this Act;
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35
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(ii)
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gave evidence or information
in connection with such
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proceedings brought by any
person;
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(iii)
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otherwise did anything under
this Act in relation to the end
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user or the employment business,
or employment agency;
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(iv)
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alleged that the end user
or the employment business, or
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40
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employment agency, had infringed
this Act; or
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(v)
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refused (or proposed to refuse)
to forgo a right conferred on him
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(b)
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that the end user or employment
business believes or suspects that the
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agency worker has done or intends
to do any of the things mentioned
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45
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(6)
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Subsection
(4) does not apply where the detriment in question amounts to a
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dismissal within the meaning
of Part 10 of the 1996 Act which falls within
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4
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Complaints
to employment tribunals, enforcement etc
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(1)
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The Secretary of State shall
by regulations provide for the enforcement before
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5
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an employment tribunal of the
rights afforded to agency workers by sections
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1(1), 3(1) and 3(4), the said
regulations to include provision for—
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(a)
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the right to present a complaint
to an employment tribunal;
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(b)
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joint and several liability for
any compensation ordered by the
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employment tribunal as between
the employment business and the end
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10
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user in respect of complaints
under sections 1(1) and 3(4);
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(c)
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the territorial extent of the
rights;
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(e)
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the applicability of the rights
to special classes of employment;
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(f)
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the necessary and consequential
amendment of legislation.
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15
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(2)
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The regulations providing for
enforcement under subsection (1) may include
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(a)
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the appointment of a regulatory
authority with suitable duties and
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powers for the purpose of enforcing
the rights afforded to agency
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workers by sections 1(1), 3(1)
and 3(4);
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20
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(b)
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the appointment of statutory
officers with suitable duties and powers
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for the purpose of enforcing the
rights afforded to agency workers by
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sections 1(1), 3(1) and 3(4);
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(c)
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alternative dispute resolution,
including the referral of proceedings
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brought before an employment tribunal
for a period not exceeding 28
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25
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days, or longer with the agreement
of the parties.
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(3)
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For the purposes of sections
3(3), 3(4) and 111 of the 1996 Act, both the
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employment business, or employment
agency, and the end user—
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(a)
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shall be deemed to be the employer
of the agency worker; and
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(b)
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shall have joint and several
liability for any award of compensation that
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30
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might be ordered in respect of
such a complaint.
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(4)
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Section 203 of the 1996 Act
(restrictions on contracting out) shall apply in
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relation to this Act as if the
provisions of this Act were contained in the 1996
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35
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“the 1996 Act” means
the Employment Rights Act 1996
(c. 18);
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“agency worker”
means any person who is supplied by an employment
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business, or employment agency,
to do work for another person (“the
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end user”) under a contract
or other arrangements made between the
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40
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employment business, or employment
agency, and the end user;
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“basic working and employment
conditions” means working and
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employment conditions relating
to—
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(a)
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the duration of working
time, rest periods, night work, paid
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holidays and public holidays;
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45
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(b)
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pay, including sick pay;
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(c)
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work
done by pregnant women and nursing mothers, children
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(d)
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action taken to combat
discrimination on the grounds of sex,
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race or ethnic origin, religion
or beliefs, disabilities, age or
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5
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“comparable direct worker”
shall have the meaning set out in section 2;
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“direct worker”
means an individual, not being an agency worker, who
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has entered into or has worked
under—
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(a)
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a contract of employment;
or
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(b)
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any other contract, whether
express or implied and (if it is
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10
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express) whether oral or
in writing, whereby the individual
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undertakes to do or perform
personally any work or services for
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another party to the contract
whose status is not by virtue of the
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contract that of a client
or customer of any profession or
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business undertaking, or
employment agency, carried on by the
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15
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“employment” means
employment under a contract of services or a
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contract personally to execute
any work or labour, and related
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expressions shall be construed
accordingly;
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“employment agency”
means the business (whether or not carried on
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20
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with a view to profit and whether
or not carried on in conjunction with
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any other business) providing
services (whether by the provision of
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information or otherwise) for
the purpose of finding workers
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employment with employers or
of supplying employers with workers
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25
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“employment business”
means the business (whether or not carried on
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with a view to profit and whether
or not carried on in conjunction with
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any other business) of supplying
persons in the employment of the
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person carrying on the business,
to act for, and under the control of,
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other persons in any capacity;
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30
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“end user” shall
have the meaning ascribed within the definition of
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“agency worker” within
this section;
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“joint and several liability”
shall be construed with reference to the Civil
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Liability
(Contribution) Act 1978 (c. 47);
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“the pro rata temporis
principle” means that where a comparable direct
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35
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worker receives or is entitled
to receive pay or any other benefit, an
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agency worker is to receive or
be entitled to receive not less than the
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proportion of that pay or other
benefit that the number of his weekly
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hours bears to the number of
weekly hours of the comparable direct
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40
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6
|
Short
title, commencement and extent
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(1)
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This Act may be cited as the
Temporary and Agency Workers (Equal
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(2)
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Subject to subsection (3), the
provisions of this Act shall come into force on
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such day as the Secretary of
State may by order made by statutory instrument
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45
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appoint; and different days may
be appointed under this subsection for
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(3)
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The day or days specified by
the Secretary of State under subsection (2) shall
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not be later than 1 October 2009.
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