[Archived] The new agencyworkers regulation

[cletus]

A new government regulation came into force on 1st October, stating 'after a 12week qualifying period' agency workers doing the same job as full time employees are entitled to the same terms & conditions (ie...rate of pay, holidays, sickness & all round rights....except company pension schemes)

Sounds great! but the company i`m working for reckon they`ve found a way round all this, & we`ll not be getting anything of the sort

It would mean a nice payrise for all concerned if we did get it.

I read something in the smellygraph saying 'the agency have to pay you the same rate as fulltime employees'

My questions are...

1...Is the company right? Can they get around this new regulation? If so 'how'?

2...If the company are right & they don`t have to, does the ageny have to pay us the same as fulltimers? Afterall, i`m employed by the agency NOT the company, or

3...are we all gonna get shafted, as usual?

It`s a tricky situation for the agency workers. The manager at the company likes to sack agency staff for very little reason, so we have to tread carefully when addressing this subject.

Any help or advice on the subject would be greatly appreciated

[Alan75]

LINK

[colin]

Cletus,

Here is ACAS' take on the new regulations.

The "get-out" clause you refer to is commonly known as "The Swedish Derogation." You can find it on the internet, but there's a fairly good description Here(BTW the suggestion for a fee to go to an Employment Tribunal in the article is still in the consultation phase, there are many pitfalls to the suggestion)

I'm currently working in the employment law field and colleagues beleive that Employment Agencies may well be coming a thing of the past. It might depend on what happens when agency workers reach the 12 week qualifying period, beleive that they have been treated unfairly, and start taking claims to Employment Tribunals. Only when tribunals start to make judgements will pattern start to emerge about what is legal and what isn't.

We've had a lot of contact with agency workers over the past few months who have been asked to sign away their employment rights. One thing is for certain is that Employment Agencies have, over the past months, been busilly trying to find out ways of getting round the Agency Workers Regulations.

[JAL]

One train of thought from companies i've heard is, that they reduce the pay of their full time employees to a level thats closer to an agency workers pay.

Bring in migrants to smooth this transitional period over- great !

[colin]

One train of thought from companies i've heard is, that they reduce the pay of their full time employees to a level thats closer to an agency workers pay.

Jal, That would be a breach of a contract of employment between employer & employee (written or otherwise.) If, as an employee, you are taken on at (say) £10 an hour then a reduction in hourly pay may well be a breach of contract. The fact that the employer uses (not employees but) agency workers is not really relevant.

Colin

[cletus]

Thanks for the info guys

I`ve heard of this 'swedish law'. It`s been mentioned a few times at work but nothing through the official channels....yet.

I`m guessing we`re gonna get d1cked by the company at the end of this 12wk period. The company is using staff from two agencies at the moment. The rumour is both sets of staff will possibly be asked to sign up for a new agency run by the company itself....thus avoiding being employed by a third party. They reckon this is a way around the legislation as it only applies to outside parties. We hear the post office is going down this route. Anybody who refuses to sign over will simply be dropped.

I`d better start weighing my options up eh?

[JAL]

Jal, That would be a breach of a contract of employment between employer & employee (written or otherwise.) If, as an employee, you are taken on at (say) £10 an hour then a reduction in hourly pay may well be a breach of contract. The fact that the employer uses (not employees but) agency workers is not really relevant.

Colin

OK Colin, then how about businesses taking on new staff on a lower rate of pay, to the ones they currently employ. Would this not be a way around it. Wonder how many businesses are currently using this tactic.

[BiggusLaddus]

What tactic? They would still need to get rid of their old, higher paid staff to make a saving. Not an easy thing to do unless the employee makes it easy.

[colin]

OK Colin, then how about businesses taking on new staff on a lower rate of pay, to the ones they currently employ. Would this not be a way around it. Wonder how many businesses are currently using this tactic.

Jal,

That certainly is a possibility. There perhaps may be issues over agreed unionised rates of pay. There also may be issues if the employer took on women employeees who were paid less than men and they were doing the same work (& the other way round.) The employer could well be open to legal action under the Equalities Act 2010. If an employer also discriminated against potential (women or men) employees to avoid the Equalities Act then they would be full circle for sex discrimination.

Interesting times

[colin]

What tactic? They would still need to get rid of their old, higher paid staff to make a saving. Not an easy thing to do unless the employee makes it easy.

If the existing employees have got over 12 months employment then they have the right to take a dismissal to an Employment Tribunal and claim unfair dismissal and so put in a claim for compensation.

Our current Government is proposing to change this 12 months period to 24 months.

In my working life I can't comment on this, but here on brfcs.com I can suggest that it is yet another kick in the teeth for the working man and woman. And a possible great big present to the Conservative Party's traditional supporters.

"Hello Mr Smith, you've worked for us for 23 months & 3 weeks. Now feck off.............."

[JAL]

What tactic?

Sorry strategy thinking football then.

Its open season on the employee now BiggusLaddus unfortunately.

[Ricky]

Colin, I work in local government. A few years ago we had a job evaluation where some people had their pay cut by up to £5k and also lost 3 days leave. Employers can find ways to cut pay if they want to. They just make you sign up to new terms and conditions and if you don't sign them you are making yourself redundant.

[colin]

Colin, I work in local government. A few years ago we had a job evaluation where some people had their pay cut by up to £5k and also lost 3 days leave. Employers can find ways to cut pay if they want to. They just make you sign up to new terms and conditions and if you don't sign them you are making yourself redundant.

Ricky,

Redundancy is a situation where the work that you do is disappearing or is likely to disappear, in local governement terms it may well involve then closing down a swimming pool or a library or reducing any other service that it offers. It's not any any different from a private sector situation where (for example you are employed to work in a factory making widgets & the demand for widgets has disappeared.) Employment law makes no difference between private sector & public sector.

If you are an employee you have the right to be held to your contract of employment which may specify your pay, hours, times, place of work etc. If your employer wants to vary the terms of your contract of employment then you have the right to object to it. You have a contract both sides should stick to it.

A contract of employment may have a "flexibility clause" which allows the employer to vary the terms & conditions unilaterally. If you do have a written contract then you'll need to read it to check. Legal case law will point you towards ASDA who put such a clause. Details are here

You cannot make yourself redundant. Redundancy is where the work you do disappears.

Your employer may dismiss you from your existing contract of employment and at the same time offer you a new one, but you have the option of treating that dismissal as unfair( and taking it to an Employment Tribunal - if you have the current 12 month employment) and/or refusing to sign up to the new offer contract.

All the best

Colin

(I'm now going to take up the mantle of brfcs.com's employment legislation consultant)

[Mike Graham]

Colin, I expect (I may be wrong!) that the ASDA case may have been based on a collectively negotiated change to the employees contract of employment that some individuals were unwilling to accept(ASDA is unionised with collective agreements). I have not heard of this case but my boss is an EAT member so I will ask him.

The reissue of contracts on the basis that people are desperate for a job rather than risk taking an ET claim are becoming more common in the public sector mainly encouraged by the present Government although they will of course deny this. I mainly cover the private sector and you would be surprised at the level of challenge by employees and their unions to the worst excesses of companies who are using the economic situation to try it on pay and terms and conditions wise when they are making very good profits. The number of companies where pay disputes are taking place over pay offers in the 2 to 4% range is at a record high, and the employers are always backing down. It is these companies who have major skills shortages which is somewhat ironic but indeed is getting worse and driving pay rates up. Indeed in the last 3 weeks I have been approached by 3 employers keen to recruit staff from BAe Systems due to their skill needs.

[colin]

Colin, I expect (I may be wrong!) that the ASDA case may have been based on a collectively negotiated change to the employees contract of employment that some individuals were unwilling to accept(ASDA is unionised with collective agreements).

Preston, I'm happy to go along with the rest of your post. However ASDA/Wal-Mart is one of the most anti-trade union employers in the country. I very much doubt that it has a collective agreement with any union nor with an employee representative body.

Cheers

Colin

[Ricky]

We were given 90 days to sign up to new terms and conditions or we would no longer have a job. Unison rolled over and had their bellys tickled!

Those new terms and conditions were at a reduced pay with less leave.

[JAL]

We were given 90 days to sign up to new terms and conditions or we would no longer have a job. Unison rolled over and had their bellys tickled!

Those new terms and conditions were at a reduced pay with less leave.

Read in the Times a couple of months ago that the government had been advised by a business team, to scrap the ninety day consultation period. Reason given, why when businesses are trying to save money and want to sack staff to save money should they have to pay employees a further ninety days. Plus the government was also advised by the same group to scrap the current TUPE laws.

What a wonderfully desperate world we can look forward to.

[Mike Graham]

Preston, I'm happy to go along with the rest of your post. However ASDA/Wal-Mart is one of the most anti-trade union employers in the country. I very much doubt that it has a collective agreement with any union nor with an employee representative body.

Cheers

Colin

Colin, you may be correct on that, I do have memory lapses!!

If your organisation ever needs any help with personal injury or workplace disease claims (asbestosis etc) my missus can help as she is partner in the Manchester office of a national law firm on behalf of claimants. PM me if you want an introduction

[cletus]

update....

We are now seven weeks into the twelve week qualifying period & have still been told zilch by the agency or the company. Surely we should`ve been told on Oct 1st how this is going to affect our jobs, pay, conditions etc....

I rang & asked the agenct manager. He said "you`ll know when we know" i told him that wasn`t good enough. We should`ve known weeks ago.

The latest 'rumours' doing the rounds are that the company have put the agency work 'out to tender'. Three agencies have tabled bids so far. The winning bidder will take on all the existing agency staff as 'salaried employees', guaranteeing us two days work a week. Anything more than that is a bonus, but if the company has no work they will pay us for the two guaranteed days. Our money will NOT improve nor will our terms & conditions be the same as the full-time workers at the company. Anybody who doesn`t sign up to this will be fired off.

It`s a fecking disgrace

[Tim Southampton Rover]

I'm in the same boat, Cletus.

All we've been told is that there is a 12 week qualifying period (like you, 7 weeks in) and then things will change......but we're not being told what will actually happen i.e. how much more money we'll get.

Luckily we're in a good position because they can't sack us because the company I work for have major deadlines which need to be met and it takes up to 4-5 months to train people so we're definitely staying on after the qualifying period ends but still we're not being told anything and can only assume we're gonna be getting a pay rise.

There are 3 members of permanent staff who are paid £5-6k more than the 7 agency workers so it's a hefty amount of money that they're going to have to pay out to us but I'm trying to play down the possibility because I know that the company i work for will try everything possible to make sure they can get away without paying us more.

[colin]

Cletus & Tim,

OK , my best effort here to give you some advice.

Where I work we have been getting lots of enquiries about the rights of agency workers and how the new regulations will kick in and when.

If you are an agency worker then after 12 weeks after the 1st October, and you have been continually working (note: not employed) by the client, then you will be entitled to equal pay with the employees of the client. You will also be entitled to equal holiday allowance (although you may be entitled to be paid instead for above and beyond the statutory minimum.)

Women will be entitled to maternity leave; there are a few other entitlements that you will garner (see what I did there?)other employment rights. The legislation includes what is commonly known as the "Swedish Derogation" whereby your agency may take you on as an employee (rather than an agency worker) and you may lose your right to the equal pay but not all your other rights. The agency will become your employer. If you have a look at "The Daily Mirror" web site and search for "Swedish Derogation" you'll get a couple of decent hits.

It's all a grey area at the moment and until people start taking cases to Employment Tribunals for ET Judges to decide it will remain a grey area.

I hope this helps

Cheers

Colin

[JAL]

The BBC are reporting that businesses want to take away the right of an independent professional doctor to certify if someone is too ill to work or not.

The future for this countries grassroots footballers becomes ever bleaker by the day when you hear of this kind of nonsense.

[colin]

The BBC are reporting that businesses want to take away the right of an independent professional doctor to certify if someone is too ill to work or not.

The future for this countries grassroots footballers becomes ever bleaker by the day when you hear of this kind of nonsense.

Jal,

Not just footballers but all employees are potentially affected. I was listening to Radio 4 when they interviewed Lord Freud, one of the ministers in charge of this new proposed legislation. I've rarely heard such a hesitant and uncertain interview. He was pretty much put into the shade by a member of the British Medical Association who, to my mind, suggested that GPs, rather than anyone else, are better placed to decide if an employee is fit for work.

That seems reasonable to me.

[cletus]

Still a wall of silence from both agency & company. Rumour is we might be told on 1st Dec. I`m not holding my breath.....

[cletus]

We have been "officially" d1cked

Got told on Dec 1st. New agency to take over from existing agencies (2 of them)

New agency will officially employ us, but everybody has to sign the "Swedish Derogation" waiving their claim to equal pay, terms & conditions.

Anybody who doesn`t sign will not be used anymore.

I`ve spoken to ACAS about it, & they say it`s legal what they`ve done.

There`s nothing we can do about it....apart from walking.

I`m probably gonna sign it (we have to by end of next week if we want a job) & just look for something else in the meantime.