Unfair dismissal rules to change 
The Chancellor, George Osbourne announced on 3 October 2011 that changes will be made to the rules for bringing unfair dismissal claims. Currently employees generally need to have one year’s service in order to acquire protection from unfair dismissal. It is proposed that this will be increased to two years from 6 April 2012.
The Government hopes that increasing the time limit will stimulate growth in the economy by making it easier for businesses to take on new employees.
The proposals were initially announced as part of the Government’s ‘Resolving work place disputes’ consultation which ran from January to April this year. Other proposals contained in the consultation included the introduction of fees for issuing claims in Employment Tribunals as one way of reducing the number of vexatious claims issued. The Government is yet to confirm whether this change will be introduced.
The Agency Workers Regulations ‘Exemptions and opt outs’
The Agency Workers Regulations 2010 (AWR) came into force in England, Scotland and Wales (GB) on 1 October 2011. The Agency Workers (Northern Ireland) Regulations 2011 will come into force on 5 December 2011 (the Northern Ireland Regulations mirror the GB Regulations).
Is there a “professional exemption” from the AWR?
The REC Legal Helpline has received many calls in recent weeks about whether agency workers who are ‘professionals’ are exempt from the AWR under a so called “professional exemption.” Whilst these calls have come from members supplying temporary workers in all sectors, the most interest has been from members in the education and driving sectors.
So where does this come from?
Regulation 3(2) of the AWR states that: “…an individual is not an agency worker if —
(a) the contract the individual has with the temporary work agency has the effect that the status of the agency is that of a client or customer of a profession or business undertaking carried on by the individual; or
(b) there is a contract, by virtue of which the individual is available to work for the hirer, having the effect that the status of the hirer is that of a client or customer of a profession or business undertaking carried on by the individual.”
Many of the queries raised on this provision focus on the word “profession” in isolation. However, Regulation 3(2) must be read in its entirety. In order for the exclusion to apply, it is necessary that under the contract that the worker has with the agency, the agency is the client or customer of the individual’s business or profession, or alternatively that another contract has the effect that the hirer is a client or customer of the individual’s business or profession.
Can an agency worker opt out of the AWR?
A further query which is being raised frequently on the Legal Helpline is about an opt out for agency workers.
Agency workers cannot opt out, waive or relinquish their entitlements under AWR. If an individual is an agency worker s/he is entitled to receive their Day One rights from the hirer from the start of their assignment, and their equal treatment entitlements (in terms of pay, annual leave etc.) on completion of the 12 week qualifying period. Any contractual clauses which purport to provide an opt out from the AWR will be void and unenforceable. This would mean an agency could not later rely on any such clause if faced with a claim under AWR.
The AWR are enforced by agency workers pursuing claims in Employment Tribunals. An agency worker may choose to bring or not to bring such a claim (and it will be interesting to see how the proposals to bring in fees for Employment Tribunal claims might impact on this). However, choosing not to bring a claim is not the same as opting out of the AWR, even if ultimately the practical effect is the same.
