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Timing <ul><li>EU Directive – deadline for implementation 5 December 2011 </li></ul><ul><li>Regulations laid before Parliament 21 January 2010 </li></ul><ul><li>Implementation 1 October 2011 </li></ul><ul><li>Conservative election manifesto suggested “gold-plating” to be removed – but ultimately confirmed would go ahead as planned </li></ul><ul><li>Guidance (final version) 2 June 2011 </li></ul>
Key principles Hirer Must provide information to employee reps about use of temps on redundancies, TUPE transfers etc. Other Agency: but reasonable steps defence Hirer Equal treatment as if hired by hirer to do the same job – basic working conditions & pay After 12 weeks Hirer (although arguable claim may also be brought against agency) Access to facilities and vacancies: Includes canteen & similar facilities, child care & transport services – subject to objective justification Notify vacancies Day 1
Which workers are covered? Individual supplied by agency to work under hirer’s direction and supervision Employee of agency Worker engaged under contract to perform work personally Not: if genuinely self-employed – operating profession/business undertaking Includes use of intermediaries Personal Service Companies?
Managed service arrangements <ul><li>Agency defined as person engaged in the business of supplying individuals to work temporarily for and under the direction and supervision of hirers </li></ul><ul><li>Probably doesn’t have to be core business </li></ul><ul><li>Genuine managed service where provider supervises employees – not caught </li></ul>
The equal treatment principle – Reg 5 <ul><li>Right to same basic working conditions for doing the same job if had been hired directly by hirer </li></ul><ul><li>Relevant terms: those relating to pay, holiday and working time </li></ul><ul><li>The terms that are ordinarily included in contracts of employees/workers of hirer – whether by collective agreement or otherwise </li></ul><ul><li>Deemed to comply if working under same relevant terms and conditions as comparable employee, and on same terms as ordinarily included in contracts of comparable employees </li></ul>
When does the equal treatment principle apply? <ul><li>After 12 calendar weeks </li></ul><ul><li>Breaks – assignments linked unless at least 6 week break </li></ul><ul><li>Change of role re-starts the clock – if separate & substantively different duties </li></ul><ul><li>Special rules for holiday, sickness (of up to 28 weeks) etc. during an assignment – effectively the pre and post periods are linked </li></ul><ul><li>Time spent on maternity leave / paternity leave / pregnancy related absence – deemed to be working for the original duration </li></ul><ul><li>Pre October 2011 time does not count </li></ul>
Anti avoidance provision <ul><li>Where worked for a hirer for 2 + assignments </li></ul><ul><li>Or worked 1 assignment each with hirer and connected hirer </li></ul><ul><li>Or worked more than 2 roles with hirer </li></ul><ul><li>Deemed to qualify where “most likely explanation” for structure is avoidance of ETP </li></ul><ul><li>Additional compensation – up to £5,000 </li></ul>
What is covered by the equal treatment right? Holiday – Contractual & WT Regs Other working time rights – contractual & WT Regs Pay But can pay in lieu of contractual element Overtime duration of work, night work, rest periods & breaks
What is meant by pay? Any sums payable by hirer under contract or otherwise As if had been employee (or worker) of hirer Not a term by term comparison? Most cash payments And vouchers with monetary value exchangeable for goods/cash/ services But not …
What is NOT included in pay? Redundancy pay Sick/maternity/ paternity/ adoption pay Pension, retirement payments Payments for loss of office Benefits in kind Some statutory payments (e.g. time off for union duties) Loans “ Financial participation schemes” Distribution of shares, options or share of profits in cash/shares
Bonuses – when are they covered? Yes Bonuses linked to amount or quality of work – piecework, sales bonus, some performance bonuses C Not covered Would not be payable if had been an employee of hirer e.g. leavers B Not covered Bonus, incentive or reward “not directly attributable to amount/quality of work… given for a reason other than amount/quality of work” e.g. encouraging loyalty/reward long service A
Mixed bonuses <ul><li>Truly discretionary: not covered at all </li></ul><ul><li>BUT: most are not entirely discretionary? </li></ul><ul><li>Mix of company and individual performance and retention – does it fall into the exemption: </li></ul><ul><ul><li>not attributable to the amount or quality of work AND given for another reason other than amount/quality </li></ul></ul>
Pay: the permanent contract exclusion <ul><li>Agency pays minimum pay between assignments: at least 50% </li></ul><ul><li>Permanent written contract before assignment began covering pay, hours, locations & nature of work and fact that individual won’t have equal treatment rights </li></ul><ul><li>Agency looks for work between assignments & offers to hirers with suitable roles </li></ul><ul><li>Agency cannot terminate until complied with requirement to pay & look for work for aggregate of 4 weeks </li></ul>
Who is the worker compared to? <ul><li>Focus of the comparison is on: what conditions would apply if worker had been hired by the hirer to do the same job: </li></ul><ul><ul><li>The terms that are ordinarily included in contracts of employment of the hirer – any standard approach to pay and conditions in contracts, collective agreements </li></ul></ul><ul><li>If comparable worker is paid the same, and is on terms ordinarily applied to comparable workers, that is a complete defence: </li></ul><ul><ul><li>Same or broadly similar work, having regard (where relevant) to qualifications and skills </li></ul></ul><ul><ul><li>At the same establishment (or another if no one comparable at that establishment) </li></ul></ul>
What is comparable treatment? If employer has standard pay scale/ structure or there is a “going rate” Pay at appropriate point of scale/at going rate, taking account of experience
What is comparable treatment? No pay scales or going rate or comparable employee/worker Pay always individually negotiated, & no custom & practice No need to match pay. But may need to match holiday if that is standard
Day 1: Access to collective facilities and amenities Canteen Childcare Transport Other? Objective Justification Guidance
Access to vacancies <ul><li>Right to be notified – “to give same opportunity to find employment” </li></ul><ul><li>Includes internal vacancies that are never advertised externally – if a comparable worker would have been made aware </li></ul><ul><li>Can use normal routes e.g. intranet/notice board – if that is how a comparable worker would have found out </li></ul><ul><li>Right to know about the vacancy </li></ul><ul><ul><li>Not a separate right to be considered? </li></ul></ul><ul><ul><li>Guidance to be issued on restructuring/headcount freeze </li></ul></ul>
Right to receive information – Reg 16 <ul><li>After 12 weeks on job, worker can make request to agency for statement of hirer’s basic employment conditions and terms, and how comparator was determined </li></ul><ul><li>Information to be provided within 28 days </li></ul><ul><li>If not received within 30 days, can be requested directly from hirer </li></ul><ul><li>Similar right to request information from hirer from Day One in relation to job vacancies information/facilities </li></ul><ul><li>Tribunal has right to draw inferences </li></ul><ul><li>Can also proceed directly to Tribunal claim – no penalty </li></ul>
Liability and enforcement – Reg 14 <ul><li>Reg 5: Agency and hirer can be liable to the extent each is responsible </li></ul><ul><li>Agency has reasonable steps defence </li></ul><ul><li>3 month time limits and just & equitable extension </li></ul><ul><li>Just and equitable compensation, taking into account any loss (2 week minimum for Reg 5) </li></ul>
Enforcement <ul><li>Power to make recommendations </li></ul><ul><li>3 months time limit </li></ul><ul><li>Rules on calculating the relevant date </li></ul><ul><li>Detriment/unfair dismissal protection for workers who have raised/enforced their Regulation rights </li></ul>
Maternity and ante-natal care Time off for ante-natal care Right to be offered alternative if suspended on maternity grounds
Practical preparation Is it feasible to rely on permanent contract exclusion? √ Other pay & allowances? Performance related salary reviews? √ Defining bonus – in or out? If it could be covered, how will it be assessed in practice? √ What mechanism/process would you apply to decide who is comparable/what terms would be if hired directly? Control over business use of temps – role for agency? √ Audit current use of temps and the cost. How do their terms compare in practice – will you be able to rely on the deemed comparator? √
Practical preparation Review existing agency terms √ Capturing information for employee consultation √ Access to information re vacancies – how are these posted, and are there any that aren’t? Are there any groups of workers without intranet access? √ What facilities are covered? Do you give access anyway? √ Control over agency responses to workers? √ System for providing information to agencies: what will agency expectations be? √
“ Participant Question Time” <ul><li>Use the ‘hands-up button to alert me to your question </li></ul><ul><li>Be sure to have a working microphone so that we can hear you </li></ul><ul><li>Don’t want to talk? then simply type a question into the chat box and I will ask this on your behalf </li></ul>
Future PVHR Webinars <ul><li>We now run webinars on a range of different subjects </li></ul><ul><li>Write to me if you would like more details [email_address] </li></ul><ul><li>Thank you for participating and …. </li></ul>
Thank you to our guest speaker – Sian Hughes - Jon If you run webinars and want to learn how to create the most effective ‘voice’ for this kind of online activity for yourself, then perhaps some vocal coaching and guidance might be of use? Contact : [email_address] UListen2.TV
“Thank-you for participating, we look forward to your feedback!” www.pvhr-recruitment.com www.pvhr.com 0845 459 9710
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