the agency workers regulations 2010 ____________________ esther martin cm murray llp

CM Murray LLP: Specialists in Employment and Partnership Law

The Agency Workers Regulations 2010

____________________

Esther Martin

CM Murray LLP


THE AGENCY WORKERS REGULATIONS 2010

• Implementation of European legislation: Temporary Agency Workers Directive 2008/104/EC

• Due to come into force 1 October 2011


Who will the regulations apply to?

Agency Workers:

– supplied by a temporary work agency– to work temporarily for and under the supervision and

direction of a hirer; and– have a contract with the temporary work agency

Regulation 3(1)


Access to employment, facilities and training

From day 1 of the assignment hirers must provide:

(a) Information about job vacancies; and

(b) Access to collective facilities, e.g.

oCanteenoCommunal break areasoChildcare facilitiesoCar parkingoPrayer room


Twelve week qualifying period

“To complete the qualifying period the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments.”

Regulation 7(2)

• Continuity can be broken or suspended in certain specific circumstances


Anti-avoidance provisions

• The Regulations contain a non-exhaustive list of factors to be taken into account whether a structure of assignments is intended to deprive the agency worker of rights.

Regulation 9(5)

• Additional award of up to £5,000 where a hirer and/or agency are found to have breached the anti-avoidance provisions.

Regulation 18(14)


Agency Worker Rights (after week 12)

An agency worker (A) is entitled to:

“… the same basic working and employment conditions as A would have been entitled to for doing the same job had A been recruited by the hirer –

(a) Other than by using the services of a temporary work agency; and

(b) At the time the qualifying period commenced.”

Regulation 5(1)


“basic working and

employment conditions”

o Payo Duration of working timeo Length of night worko Rest periodso Rest breakso Annual leave

• Comparator required• Terms must be ‘ordinarily included’


Pregnant women and nursing mothers

• Subject to the 12 week qualifying period• Agency workers are entitled to:

– reasonable time off during working hours to attend ante-natal appointments

– payment from employment agency during her absence

• She may lodge a tribunal claim if a request is unreasonably refused

• Duty to make reasonable adjustments on hirers


Practical tips for hirers

Always ask:

1. Is the worker a temp from an agency?

2. Have they ever worked for you (or a connected business) previously?

3. Are they likely to qualify for equal treatment?

4. How long is the assignment likely to last?

5. What benefits and other terms will have to be offered and when?


Default Retirement Age ______________________

Bettina Bender

CM Murray LLP


Default Retirement AgeWHAT IS CHANGING?

Employers will no longer be able to use the DRA of 65 to maintain a compulsory retirement policy for their workforce:

• From 6 April 2011: No new notifications of retirement on basis of DRA to be issued

• 1 October 2011: DRA and statutory “duty to consider” retirement procedures will be abolished

WHAT ISN’T CHANGING?

Objective justification: Employers may still operate a compulsory retirement age except that from April 2011 they will need to objectively justify it (as they have up to now for retirement ages below 65)


Option 1: Having a Compulsory Retirement Age

1. Legitimate aim

- Workforce planning/succession- Facilitating the recruitment and

retention of younger employees- “Collegiality” - Increased costs e.g. pensions

and benefits

(Seldon v Clarkson, Wright & Jakes and another)

2. Proportionate

- Balancing act- Why that cut off point?- Criterion other than age?- Consistency?- Evidence

European Cases (Wolf, Peterson, Rosenbladt)

v

UK Cases (Martin, Hampton, Baker)


Option 2: Removing the Compulsory Retirement Age

• Follow a fair procedure and rely on one of the 5 other potentially fair reasons for dismissal:

– Conduct– Capability/Qualifications– Redundancy– Statutory restriction– “Some Other Substantial Reason”

• Change in corporate culture

• Adequate Performance Procedures

• Using appraisal process to discuss future plans

• Recruitment


Next Steps/Issues to Consider

Option 1: Retaining an EJRA

• Document how the Company has come to its decision

• Identify business needs and legitimate aim

• Compile evidence to show why that age has been decided upon and why other criterion cannot be used

• Consultation Exercise?

Option 2: No Retirement Age

• Adequate Performance Procedures and appraisals in place

• Consider flexible working arrangements

• Ensure line managers know how to deal with long term sickness absence

For all companies:

• Amendments to contracts of employment, staff handbook, pensions and share schemes (good leaver/bad leaver status)

• Training Requirements

• Provision of benefits


Positive Action Provisions under the Equality Act 2010

______________

Esther Martin

CM Murray LLP


Political correctness gone mad?

‘WHITE MEN FACE JOBS BAN’ Daily Express, June 2008

‘Employed because I was black: Positive discrimination robs people of their drive to succeed’

Daily Mail, April 2011


Equality Act 2010

General Rule:Individuals should not be treated less favourably because of: • Age• Disability• Race / nationality • Religion or belief• Gender reassignment

• Sex• Sexual orientation• Marriage or civil

partnership• Pregnancy and

maternity


Exceptions: pre-April 2011

• Occupational RequirementSchedule 9

• Disability / Pregnancy / Ages13(3)/

S13(6)(b)/

Schedule 9

• General Positive ActionS158


s159: Recruitment and Promotion (part 1)

Where an Employer reasonably thinks that persons with a particular protected characteristic are disadvantaged, or their participation in an activity is disproportionately low…

…the Employer can treat a person with that relevant characteristic more favourably in recruitment and promotion.


s159: Recruitment and Promotion (part 2)

As long as:

• They are ‘as qualified as’ those others,

and

• The Employer does not have a policy of treating such people more favourably


“As qualified as”s159(4)(a)

“Equal Merit”

Qualifications vs Experience


A few tips for employers:

• Positive action is voluntary • s159 decisions should always be proportionate:

consider where possible other ways of addressing under-representation of particular groups

• Criteria for any role should remain objective and the reasons for any decision should be documented carefully

• See ‘Quick Start Guide’ for more explanation

(GEO publication)


The Bribery Act 2010

_________________Anna BirtwistleCM Murray LLP


The Bribery Act 2010

• (Finally!) July 2011

• Issues for law firms:– Hospitality/gifts– Referrals– Instructing overseas counsel– Setting up abroad

• Guidance:– Ministry of Justice – Joint Prosecution– Law Society– Transparency International


Offences General Offences:

1. Paying bribes (“Active bribery”) (s.1)

2. Receiving bribes (“Passive bribery”) (s.2)

Specific Offences:

3. Bribing a foreign public official (s.6)

4. Failure by a commercial organisation to prevent bribery: the “Corporate offence” (s.7)


The Corporate Offence

• A “commercial organisation” will commit bribery if an “associated person” bribes another person for that organisation’s benefit.

• Strict liability

• Territorial reach

• Defence: “Adequate procedures”

“Commercial organisations”: partnerships and LLPs, as well UK companies and overseas companies carrying on business in the UK

“Associated person”: employees, agents, subsidiaries, intermediaries, joint venture partners


Adequate Procedures Defence

Government (MoJ) guidance, six principles:

1. Risk Assessment

2. Top level commitment

3. Due diligence

4. Clear, Practical and Accessible Policies and Procedures

5. Effective implementation

6. Monitoring and review


Corporate hospitality

• An established part of doing business

• Lavish vs reasonable and proportionate

• Motivation is key


Penalties/Other Consequences Of Non-Compliance

• SFO• Criminal sanctions (s.1, 2 & 6)• Unlimited fines• Debarment from tendering for public-sector

contracts• Confiscation Orders (Proceeds of Crime Act)• Adverse publicity• Reputational damage


Practical Tips

• Policies – Anti-bribery, corporate hospitality and gifts, whistleblowing procedures

• Training relevant staff– Top down commitment: Management board, Practice Managers and Partners

• Assessment of risk– Which countries are the firm operating in and in which sectors?

• Due diligence– Suppliers, agents, contractors

• Investigation procedures and disciplinary sanctions

• Appointing individual responsible for bribery issues


Clare Murray

Managing Partner

Bettina Bender

Partner

Charis Damiano

Consultant

Esther Martin

Associate

Anna Birtwistle

Associate

Susanne Foster

Senior Associate

The CM Murray LLP

Team


CM Murray LLP37th Floor

One Canada SquareCanary Wharf

London E14 5AA

+44 (0)20 7718 [email protected]

Twitter: @CMMurrayLLP

the agency workers regulations 2010 ____________________ esther martin cm murray llp

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