Draft Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations 2010 and three related instruments, etc - Merits of Statutory Instruments Committee Contents


APPENDIX 4: AGENCY WORKERS REGULATIONS 2010 (SI 2010/93)


Letter from the British Medical Association

The British Medical Association (BMA) is an independent trade union and voluntary professional association which represents doctors and medical students from all branches of medicine throughout the UK. It has a total membership of over 146,000, which continues to grow each year.

We understand that the main purpose of the Agency Worker Regulations is to ensure the appropriate protection of temporary agency workers through the application of the principle of equal treatment and to address unnecessary restrictions and prohibitions on the use of agency work. Under the Agency Worker Directive (2008/104/EC), 'equal treatment' relates only to basic working and employment conditions of temporary agency workers (e.g. pay and working time); the Directive does not affect the employment status of temporary workers.

Timeframe for implementation

The Government's autumn consultation document states that the new rights will not come into effect until October 2011. We understand that this is one of the latest possible dates for implementing the legislation as the final deadline for European Union member states to implement the consultation is 5 December 2011. While we understand that the Directive will involve potentially significant changes in practice for hirers and agencies we are concerned that agency workers are particularly vulnerable during times of recession. We would therefore urge the Government to consider the possibility of whether the Directive could be implemented sooner.

Scope of the Regulations

According to the NHS Confederation, of the estimated 1.3 million temporary agency workers employed in the UK around 10% are engaged in the healthcare sector1. It is important to clarify who in the health sector will be covered by the proposed definition of 'agency worker' in the consultation. The definition of who is covered by the Regulations is extremely complex and confusing. The way that the proposals are phrased theoretically could mean that some workers might not deemed to be 'agency workers' and thus are not covered by the proposals. The measures are applicable to workers who work 'under the direction of a hirer.' We seek clarification as to whether under the regulations, a locum doctor (whether working at General Practice or in a hospital) is regarded as working '…for and under the direction of the hirer…'. The BMA also seeks clarification of doctors on secondments are included in the Regulations.

Establishing equal treatment

The primary means by which the Regulations seek to improve the employment situation for agency workers is the provision of the right to 'equal treatment. An agency worker is entitled to the same 'basic working and employment conditions' as if they had been recruited directly by the hirer. These basic working and employment conditions include pay, the duration of working time, the length of night work, rest periods, rest breaks and annual leave. Establishing equal treatment necessitates a comparison.

We are concerned that the Regulations contain complex rules for determining whether an 'agency worker' has received equal treatment which could make it difficult for agency workers to enforce their rights. There are added complexities in the practical application of a comparator test in smaller organizations, such as GP practices, and further guidance on how this could be implementation would need to be developed.

Definition of pay

The BMA is committed to the elimination of unlawful discrimination and the removal of barriers to careers throughout the medical profession and equality in the provision of its services to its members and stakeholders. We are concerned that the definition of pay excludes a number of payments and rewards including maternity, paternity and adoption pay and payments relating to time off for dependents. This year the BMA published The Pay Gap for Women in Medicine and Academic Medicine which highlighted the current pay gap between women and men in the medical profession. This report is available on the BMA website at:

http://www.bma.org.uk/employmentandcontracts/equality_diversity/gender/paygapreport09.jsp.

We seek further clarification as to why the particular payments are being excluded given their importance to parents, carers and female workers and the Government's policy direction in regards to equalities.

We believe that the BMA, as a trade union and our individual members, plays a legitimate and important role in our democracy, health care and employment relations system. We are concerned that the definition of pay also excludes payments for statutory time-off such as for carrying out trade union duties and seek further clarification as to why they are not included. We seek further clarification on the approach taken in regards to establishing equal treatment.

Qualifying period/rotation of agency workers

Under draft Regulations an agency worker would need to complete a 12 week qualifying period before becoming entitled to equal treatment. The Regulations state that to complete the qualifying period an agency worker must undertake the same role with the same hirer for 12 continuous calendar weeks. We are concerned with the possibility that agency workers could be rotated from one role to another to prevent them meeting the 12-week qualifying period. The Regulations propose that a 6-week break for reasons other than holidays, maternity, paternity or sick leave would be sufficient to break continuity for the purpose of the 12-week qualifying period. For example, we are concerned that this may mean that doctors that are medical academics working on longer assignments would have their continuity broken during the summer vacation or as a result of being assigned to a different department or school. Under the Regulations, an unscrupulous hirer might shift workers to work via different subsidiary companies every 11 weeks in order to avoid the implication of the Regulations. It may be possible to mitigate the effect of such a loophole by amending the legislation so that the 12 weeks continues to run when the agency worker moves within a group of companies that are under the same effective control. We seek further clarification on how the qualifying period will work in practice.

Right to receive information in relation to rights and duties

We believe that the Regulations could be strengthened. The current proposal means that the worker has to specify what information they want, and then the temporary work agency will provide it. However, it is highly likely that many workers will not be legally advised and it would be simpler if the agency were under an obligation to provide prescribed information in response to a generic or non-specific request for information from the worker. By way of example, such a model is used in the Data Protection Act 1998 whereby a simple request that a lay person might make for '…all personal data you hold in respect of me…' (or similar words) is sufficient to trigger a statutorily defined disclosure of information; perhaps a request for '…any information that details how I am treated relative to permanent employees…' (or words with similar meaning) could be made to trigger a disclosure of prescribed information under these regulations.

It is not clear under the Regulations how broad the disclosure of information by the hirer needs to be. Is it just in respect of comparable employees (in which case this may create a problem as the hirer will need to make an assessment as to whether there are any comparable employees, and if so who they are), or does it apply in respect of all employees (in which case one will need to consider how useful the disclosure of information is to the agency worker)? There may also be scope for the hirer to argue that there are not any comparable employees which may be contrary to the agency workers view. To the extent that such information is necessary for the agency worker to put together a legal claim, the agency worker may be hampered by such a dispute.

Practical advice guidance which will accompany the Regulations

The BMA was pleased that the Department for Business, Innovation and Skills sought views on the practical advice should be covered in the guidance which will accompany the Regulations. The BMA believes that the guidance should be in plain English and easy to understand. Where possible jargon and acronyms should be avoided and a glossary of key terms and definitions would be particularly useful. The Regulations apply to England, Scotland and Wales. Accompanying guidance will therefore need to be available in Welsh under the Welsh language scheme.

The BMA believes that the guidance should make clear who is affected by the Regulations, what is different or has changed because of the Regulations, the appropriate legal process for enforcing rights, and where further information can be obtained. It may be necessary to produce sector specific guidance, given the size of the NHS workforce.

January 2010



 
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