LLM/PGDIP: Employment Law: AWR Module 1 (LW7513) 2023/4 Question and Answer

Introduction: Key Provisions of AWR 2010: A Legal Analysis

The Agency Workers Regulations (AWR) 2010 represents a pivotal legislative framework in the United Kingdom, aiming to secure equal treatment for agency workers in comparison to permanent employees. Originating from the European Union's Temporary Agency Work Directive, the AWR 2010 seeks to integrate these standards into UK law. The core objective is to ensure that agency workers receive similar basic employment and working conditions as if they had been directly hired for the same role.

Question 1: Analysis of the Agency Workers Regulations 2010 (AWR 2010)

Understanding the AWR 2010

The AWR 2010 has been implemented in the UK to transpose the European Union's Temporary Agency Work Directive into UK law. This Directive aimed to provide temporary agency workers with equal treatment in terms of basic working and employment conditions that have been similar to those of permanent workers. The primary objective of the AWR is to ensure that agency workers receive the same basic employment and working conditions as if they had been recruited directly by the hirer to do the same job. The most significant provision of the AWR is the 12-week qualifying period. Once an agency worker has fulfilled 12 consecutive weeks in the same position with the same employer. Moreover, they are entitled to receive the same fundamental working and employment circumstances as if they were directly engaged by the employer. The AWR has received commendation for its provision of crucial safeguards for a susceptible portion of the labour force, while simultaneously facing criticism for potential loopholes and constraints that could impede agency workers from attaining comprehensive employment rights. Hence, it has been noted that employment right has been facing the criticism issue regarding the susceptible portion of the labour force in the societies.

Under Section 5 of the AWR 2010, agency workers are entitled to equal treatment regarding their basic working and employment conditions after they complete the qualifying period. This includes equal pay, working hours, overtime, breaks, and annual leave, aligning their rights with those of permanent employees in similar roles. The qualifying period, as detailed in Section 7, is a critical component of the AWR. It refers to a continuous 12-week period during which an agency worker is engaged in the same role with the same hirer. Completion of this period is essential for the worker to qualify for equal treatment. Section 14 outlines the liabilities and responsibilities of both the temporary work agency and the hirer in cases of non-compliance with the AWR . It ensures accountability for upholding the rights of agency workers. Section 20 deals with the legal liabilities of employers and principals in cases of non-compliance with the AWR, including potential penalties and remedies.

Distinction Between 'Employee' and 'Worker' Status

An employee is someone who works under an employment contract. This contract is a formal agreement, either written or oral, that establishes an employer-employee relationship. Section 5 of the Agency Worker Regulations (AWR) 2010 is a critical provision that outlines the rights of agency workers in relation to their basic working and employment conditions. This section ensures that agency workers, after completing the qualifying period, are entitled to the same basic working and employment conditions as they would have been if they had been directly recruited by the hirer.

Agency workers, who are often the subject of discussion in the context of the AWR 2010, can fall into either category depending on their working arrangement. They are typically considered workers, but some may meet the criteria to be classified as employees, especially when they work under long-term contracts and exhibit characteristics similar to those of employees. Section 5(4)) of the Act has defined the comparable employee and it is defined as someone who is working under the supervision and direction of the hirer, engaged in the same or broadly similar work, and has a similar level of qualification and skills as the agency worker.

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Case Laws

In the case of “Twenty-Four Seven Recruitment Services Limited and others v Afonso and others,” the Employment Appeal Tribunal (EAT) has been providing guidance on the level of detail required in an agency worker's contract to invoke the equal pay ('Swedish derogation') exemption in the AWR. The case involved 191 agency workers (the "Claimants") who brought a claim for equal pay to permanent workers of their hirers, alleging that their contracts did not satisfy the Swedish derogation. The ET found that the Claimants' contracts did not meet the requirements for the Swedish derogation, specifically regarding the specification of pay scale or rate and expected hours of work. The EAT upheld this decision, emphasizing the need for clear information in contracts about the rate of pay and expected hours.

On the other hand, “Kocur v Angard Staffing Solutions Limited and others”, the Court of Appeal has stated that Regulation 13(1) of the AWR concerns the right of an agency worker to be notified of relevant vacant posts. Furthermore, it does not extend beyond the right to be informed about these posts. The case centered on an agency worker, Mr. Kocur who was employed by Angard Staffing Solutions Limited, a subsidiary of Royal Mail. Mr. Kocur claimed he was not eligible to apply for internal vacancies notified on the Leeds Mail Centre notice board. The Court found that the AWRs do not grant the agency worker the right to apply for and be considered for internal vacancies on the same terms as directly-recruited employees.

"James v Greenwich London Borough Council [2008] EWCA Civ 35" is a notable UK labor law case that dealt with the topic of implied contracts for individuals working through employment agencies. In this case, the Court of Appeal held that there was no implied contract of employment between the worker and the end user (Greenwich London Borough Council) in circumstances where the worker was supplied by an employment agency.

However, the legal landscape regarding agency workers was significantly altered with the introduction of the Agency Workers Regulations 2010. Hence, it has been noted that the legal landscape has been made with the havings of the core practices in order to meet the requirements in the societies and building the corporate societies in the societies.

Critique of the AWR's Effectiveness

The effectiveness of the Agency Workers Regulations (AWR) 2010 has been a subject of considerable debate. Furthermore, it has been reflecting both its strengths and weaknesses in addressing the rights of agency workers. Moreover, the AWR has been instrumental in promoting equal treatment for agency workers, particularly after the completion of the 12-week qualifying period. This includes ensuring parity in pay, working hours, and holiday entitlements with permanent employees.

However, the AWR has faced criticism for its complexity and lack of clarity, which has sometimes led to difficulties in compliance and enforcement. Hence, it has been noted that one notable loophole was the 'Swedish Derogation' that has been allowing the agencies to offer permanent contracts with pay between assignments, exempting them from the equal pay requirement. Although this was abolished in 2019 and it has been highlighted the ways in which the regulations could be circumvented. Enforcement has been another challenge, with workers often reluctant to assert their rights due to concerns about job security.

Moreover, critics contend that the AWR has had a detrimental effect on enterprises, leading to higher operational expenses and diminished adaptability. Furthermore, this could result in a decrease in the utilisation of temporary employees. The agency workers continue to be deprived of many safeguards that are granted to permanent employees, such as redundancy pay and protection against unjust termination. Furthermore, although agency workers enjoy equal opportunities to apply for job openings, there is no assurance of obtaining a permanent position, hence perpetuating the problem of job instability within the agency labour industry (Although the AWR 2010) has achieved substantial advancements in safeguarding the rights of agency workers. Hence, it has been noted that the though the execution has encountered certain difficulties. These encompass concerns over transparency, implementation, and the effects on both employees and enterprises. The continuous modifications and revisions to the regulations illustrate endeavours to tackle these difficulties and improve their efficacy challenges. Furthermore, it has been stated that the key concerns of the organisation has been developed

Comparative Analysis

Hence, the regulation has been derived and made the environment in order to perform the task effectively. The UK's AWR has been inspired by the EU's Directive 2008/104/EC, is notable for its provision of equal treatment in terms of pay and working conditions after a 12-week qualifying period. These regulations has been including equal access to facilities and job vacancies from the first day of employment, addressing key areas of potential inequality for agency workers.

However, the United States has been lacking a federal equivalent to the AWR that offering less comprehensive protection for agency workers. Furthermore, rights and protections for temporary workers in the U.S. are largely governed by general employment laws, and specific protections vary by state, often falling short of the standards set in the UK and EU. While the overarching framework is similar to the UK's AWR and the implementation varies among member states in the context of the European Union. Furthermore, This variance illustrates the flexibility within the EU framework to accommodate different labour market dynamics with some offering more extensive protections.

Conclusion

The development of legal precedents on the classification of workers has played a crucial role in addressing shifts in the job market, especially in relation to the rise of the gig economy and flexible work arrangements. Courts have progressively prioritised the essence of the employment relationship rather than the structure of the agreement. This transition guarantees that employment law stays pertinent and effective in safeguarding employees in various and ever-changing work environments. The sfaegurding working environments has been made within the organsiational cultures have been developed with the having of the practices of employability in the business market territory.

However, these advancements also emphasise the intricacy and flexibility of ascertaining worker classification, emphasising the persistent difficulty for legal systems to adjust to the evolving nature of employment. As the workforce undergoes changes additional legal adjustments and clarifications have been required to ensure that rights and protections are properly aligned with contemporary working methods.

References

• Barreto RN, ‘Temporary Employment Services (Temporary Agency) Work : The South African Case' (ethos.bl.uk2020) <https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.819254>
• Brighthr.com, ‘What Is Swedish Derogation' (www.brighthr.com4 June 2020) <https://www.brighthr.com/articles/contracts/agency-worker-rights/swedish-derogation/>
• Crosslandsolicitors.com, ‘Agency Workers: Right to Be Informed of Vacancies - Crossland Employment Solicitors' (Crossland Solicitors18 February 2022) <https://www.crosslandsolicitors.com/site/cases/Kocur-v-Angard-agency-workers-right-to-be-informed-of-vacancies> accessed 16 December 2023
• Emma Sanderson and Meriel Schindler, ‘The Agency Workers Regulations 2010 - Employment and HR - UK' (www.mondaq.com2011) <https://www.mondaq.com/uk/employee-rights-labour-relations/150074/the-agency-workers-regulations-2010>
• Employmentlawworldview.com, ‘The End of the Swedish Derogation – Yes, but What Does It All Mean in Practice? (UK)' (Employment Law Worldview12 June 2019) <https://www.employmentlawworldview.com/the-end-of-the-swedish-derogation-yes-but-what-does-it-all-mean-in-practice-uk/>
• Forde C and Slater G, ‘Labour Market Regulation and the “Competition State”: An Analysis of the Implementation of the Agency Working Regulations in the UK' (2016) 30 Work, Employment and Society 590
• --, ‘Labour Market Regulation and the “Competition State”: An Analysis of the Implementation of the Agency Working Regulations in the UK' (2016) 30 Work, Employment and Society 590
• Gov.uk, ‘Introduction ................................................................................................... 3' (2011) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/32121/11-949-agency-workers-regulations-guidance.pdf>
• Hubspot.net, ‘Lexicon of Global Contingent Workforce-Related Terms' (2013) <https://cdn2.hubspot.net/hub/396971/file-1870690470-pdf/GLOBAL/SIAAG/GlobalLexicon_131105.pdf> accessed 16 December 2023
• Jib.org.uk, ‘PRACTICE NOTE LLM (Professional Legal Practice) How Have Changes in the Law Regarding Employment Status of Employment Business Operatives Affected Employment Practices in the Construction Industry?' (2015) <https://www.jib.org.uk/documents/publications/162-llm-project-employment-status.pdf> accessed 16 December 2023
• Legislation.gov.uk, ‘The Agency Workers Regulations 2010' (Legislation.gov.uk2023) <https://www.legislation.gov.uk/uksi/2010/93/regulation/14/made> accessed 16 December 2023
• Personneltoday.com, ‘Calculating the 12-Week Qualifying Period under the Agency Workers Regulations 2010 - a Guide' (Personnel Today6 March 2012) <https://www.personneltoday.com/hr/calculating-the-12-week-qualifying-period-under-the-agency-workers-regulations-2010-a-guide/>

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