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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