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Agency Liability for breach of the 12 week qualifying period anti-avoidance provisions

Prior to the drafting of the Regulations, concerns were raised about the possibility that agency workers could be prevented from receiving equal treatment if they were unable to reach the 12 week qualifying period as a result of the way that their assignments were structured by either agencies, or clients.
In order to combat this possibility, the Regulations include specific provisions which entitle the agency worker to be treated as if the equal treatment provisions apply even if she/he has not reached the 12 week qualifying period. The provisions also protect agency workers who having reached the 12 week qualifying period then have their assignment arranged in such a way which results in their entitlement to equal
treatment coming to an end.
In the event of an agency worker successfully pursuing a claim against an agency and or client for failure to provide equal treatment and the Tribunal finds that the either the agency or client arranged the agency worker’s assignment in contravention of the anti-avoidance provisions, the Employment Tribunal can award additional compensation of up to £5000.

Failure to comply with the contract terms for employed agency workers
Agency workers who are engaged by an agency under a permanent contract of employment that provides for pay between assignments shall not be entitled to equal pay provisions under the Regulations, provided that certain conditions are met.
In the event that the agency breaches one of the terms of the agency worker’s contract or fails to comply with one of the relevant conditions relating to the use of the contract, the agency will be liable.
On the face of it, if the agency worker’s contract does not meet the conditions that are required in order for the equal pay provisions to not apply, the agency worker may also have a claim in respect of the failure to provide equal treatment (basic working and employment conditions) if the rate of pay the agency worker received after the qualifying period is less than the rate of pay that is paid or would be paid to a client’s directly engaged worker undertaking similar work.

Indemnifying clients for breaches of the Regulations

Given that the liability for various breaches of the Regulations may rest with the end user client as well as one or more agencies or other intermediaries involved in the supply of the agency worker, it is inevitable that parties will take steps to limit their liability through the use of indemnity provisions in contracts. This may be by introducing contractual provisions which specifically relate to the Regulations or very general provisions which are wide enough to deal with liability under the Regulations.

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