The Regulations state that if a qualifying agency worker does not receive equal treatment (basic working and employment conditions), then the agency worker can pursue a claim in an Employment Tribunal against either the agency or the client (or both). An Employment Tribunal will analyse the facts to determine to what extent each party is responsible for the breach of the Regulations.
This means that when determining what compensation will be awarded to an agency worker who is successful in bringing a claim, the Employment Tribunal can apportion the award against the party or parties which it concludes is responsible for the failure to provide equal treatment.
In practice this is likely to result in the agency that has the direct contractual relationship with the agency worker bearing primary liability for the breach since it will be responsible for paying the agency worker and agreeing the terms and conditions that apply to the agency worker.
However, in practice, the only way that the agency will be able to ensure that the agency worker works under the same terms and conditions (pay and working conditions) as would have applied if the agency worker had been engaged directly by the client, is to rely on information that it receives from the client as to what those terms would be.
To this end, the Regulations provide a specific defence for agencies if:
• The agency either obtains information from the end user client about the basic working terms and employment conditions in the client’s business or takes reasonable steps to obtain this information; and
• acts reasonably in determining what working terms and employment conditions the agency worker should be engaged under once the 12 week qualifying period has been reached; and
• ensures that it provides the agency worker with those working and employment conditions.
If the agency complies with the above it will not be liable if the agency worker does not receive equal treatment. If the client is at fault because, for example, it has provided incorrect information to the agency, then the client rather will be liable.
The agency is instructed to supply an agency worker to client X for a maternity cover assignment. The client advises the agency that the role will last for at least six months. The agency asks the client for details as to what terms and conditions it would include in the agency workers contract in terms of basic working and employment conditions (including pay) if the client was to engage the agency worker directly after the 12 week qualifying period to do the same role.
The client provides the agency details of the annual salary and the agency uses this to calculate what hourly rate it should pay the agency worker once the 12 week qualifying period has been reached in the assignment.
If it subsequently transpires that the salary details that the client has provided are in fact not consistent with what the client would have paid a directly recruited worker to do the same job, the liability will rest with the client.
Information that agencies should seek to obtain from client
• Is there a comparable employee in the client’s business? If yes, what terms is that comparable worker or employee engaged under?
• If there is no comparable employee, then what terms would the client have engaged the agency worker on if they were to engage them directly?
In particular agencies need to know about the following:
• What are the hourly rates payable to a comparable employee? Alternatively, if a salary is paid, what hourly rate does that equate to?
• Is commission paid? If yes, how is this calculated?
• What bonuses are payable, on what basis and when?
What rates are paid for overtime and/or unsociable hours?
• What are the anticipated hours of work?
• What rest breaks does the client give to other workers?
• Annual leave – what contractual holiday is the comparable employee or worker entitled to – is it equal to or greater than the statutory minimum?
Previous time working for the client
• Has the worker worked in the same role at that client previously, even through another agency? This is important because the agency worker may have already accrued some time towards the qualifying period.
The agency should obtain the necessary information in sufficient time to allow it to comply with its obligations under the Regulations. We would recommend therefore obtaining the information from the client either prior to the commencement of the assignment, or as soon as the agency knows the assignment will last more than 12 weeks.