Citation, commencement and extent

1. —(1) These Regulations may be cited as the Agency Workers (Amendment) Regulations 2019 and come into force on 6th April 2020.

(2) These Regulations extend to England and Wales and Scotland only.

Interpretation

2. In these Regulations—

“the 1996 Act” means the Employment Rights Act 1996( 4 );

“the 2010 Regulations” means the Agency Workers Regulations 2010( 5 ); and

“contract of employment”, “agency worker” and “temporary work agency” have the meanings respectively given in regulations 2, 3 and 4 of the 2010 Regulations.

Amendments to the Agency Workers Regulations 2010

3. —(1) The 2010 Regulations are amended as follows.

(2) In regulation 5, omit paragraph (6).

(3) In regulation 7(4), omit “and regulation 10”.

(4) Omit regulations 10 and 11.

(5) In regulation 18—

(a) omit paragraph (3);

(b) in paragraph (4)(a), omit “or a breach of a term of the contract described in regulation 10(1)(a) or of a duty under regulation 10(1)(b), (c), or (d)”;

(c) in paragraph (6)(a), omit “or breaches regulation 10(1),”;

(d) in paragraph (6)(b), omit “or 10(1)”;

(e) in paragraph (12)(a), omit “or 10”;

(f) in paragraph (12)(b), omit “or 10”;

(g) in paragraph (15), omit “or breaches regulation 10(1)(b), (c), or (d), or breaches a term of the contract described in regulation 10(1)(a)”.

Requirement to provide written statement

4. —(1) Where a contract of employment which is in effect when these Regulations come into force contains a statement for the purposes of regulation 10(1)(b) of the 2010 Regulations (“the original statement”), the temporary work agency which is party to that contract of employment must, in accordance with paragraph (2), provide a written statement to the agency worker that, with effect from 6th April 2020—

(a) the agency worker is entitled to rights relating to pay as part of the rights conferred by regulation 5 of the 2010 Regulations, subject to completion of the qualifying period as stated in regulation 7 of those regulations; and

(b) the original statement no longer has effect.

(2) A written statement under paragraph (1) must be provided on or before 30th April 2020, unless the contract of employment is terminated on or before that date.

(3) An agency worker may present a complaint to an employment tribunal that a temporary work agency has infringed the right to be provided with a written statement conferred on the agency worker by this regulation.

(4) Paragraphs (4)(a), (4A), (5), (6), (7), (8), (10), (11), (12), (13), (15), (16), (17) and (18) of regulation 18 and regulations 18A, 19 and 20 of the 2010 Regulations apply to a complaint under paragraph (3) in the same way as to a complaint under regulation 18(2) of the 2010 Regulations but with the modification that references to rights conferred by regulation 5 of the 2010 Regulations are to be treated as references to the right to be provided with a written statement conferred by this regulation.

Unfair dismissal and the right not to be subjected to detriment

5. —(1) An agency worker who is an employee and is dismissed shall be regarded as unfairly dismissed for the purposes of Part 10 of the 1996 Act if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in paragraph (3).

(2) An agency worker has the right not to be subjected to any detriment by, or as a result of, any act, or deliberate failure to act, of the temporary work agency which is the employer of the agency worker, done on a ground specified in paragraph (3).

(3) The reasons or, as the case may be, grounds are—

(a) that the agency worker—

(i) brought proceedings under these Regulations;

(ii) gave evidence or information in connection with such proceedings brought by any agency worker;

(iii) otherwise did anything under these Regulations in relation to a temporary work agency or other person;

(iv) alleged that the temporary work agency which is the employer of the agency worker has breached these Regulations;

(v) refused (or proposed to refuse) to forgo a right conferred by these Regulations; or

(b) that the temporary work agency believes or suspects that the agency worker has done or intends to do any of the things mentioned in sub-paragraph (a).

(4) Where the reason or principal reason for subjection to any act or deliberate failure to act is that mentioned in paragraph (3)(a)(iv), or paragraph (3)(b) so far as it relates to paragraph (3)(a)(iv), neither paragraph (1) nor paragraph (2) applies if the allegation made by the agency worker is false and not made in good faith.

(5) Paragraph (2) does not apply where the detriment in question amounts to a dismissal of an employee within the meaning of Part 10 of the 1996 Act.

(6) Subject to paragraph (5), an agency worker may present a complaint to an employment tribunal that a temporary work agency has infringed a right conferred on the agency worker by this regulation.

(7) Paragraphs (4)(a), (4A), (5), (6), (7), (8), (10), (11), (12), (13), (16), (17) and (18) of regulation 18 and regulations 18A, 19 and 20 of the 2010 Regulations apply to a complaint under paragraph (6) in the same way as to a complaint under regulation 18(2) of the 2010 Regulations, but with the modification that references to rights conferred by regulation 17(2) of the 2010 Regulations are to be treated as references to rights conferred by this regulation.

Special classes of person

6. —(1) Regulations 21 to 24 of the 2010 Regulations apply for the purposes of giving effect to these Regulations in the case of the persons referred to in regulations 21 to 24 in the same way and to the same extent as the 2010 Regulations apply to those persons.

(2) Accordingly, for those purposes—

(a) references in regulations 21 to 24 to the 2010 Regulations are to be treated as references to these Regulations; and

(b) the reference in regulation 24 to regulation 20 of the 2010 Regulations is to be treated as a reference to regulation 20 as it applies to these Regulations in accordance with regulations 4 and 5.

Saving provision

7. Nothing in these Regulations affects the application of the 2010 Regulations to complaints which relate to breaches of the 2010 Regulations which occurred prior to these Regulations coming into force.

Consequential amendments

8. —(1)The Employment Rights Act 1996 is amended as follows.

(2) For subsection (7N) of section 105 substitute—

“ (7N) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in—

(a) paragraph (3) of regulation 17 of the Agency Workers Regulations 2010(unless the case is one to which paragraph (4) of that regulation applies); or

(b) paragraph (3) of regulation 5 of the Agency Workers (Amendment) Regulations 2019(unless the case is one to which paragraph (4) of that regulation applies). ” .

(3)The Employment Tribunals Act 1996( 6 ) is amended as follows.

(4) In subsection (1) of section 18—

(a) after paragraph (z4), omit “, or”; and

(b) after paragraph (z5), insert—

“ , or

(z6) under paragraph (3) of regulation 4 or paragraph (6) of regulation 5 of the Agency Workers (Amendment) Regulations 2019. ” .

Review

9. —(1) The Secretary of State must from time to time—

(a) carry out a review of the regulatory provisions contained in—

(i) regulations 4 and 5; and

(ii) the 2010 Regulations, to the extent only of the effect of the amendments made by regulation 3 of these Regulations; and

(b) publish a report setting out the conclusions of the review.

(2) The first report must be published before 6th April 2025. Subsequent reports must be published at intervals not exceeding 5 years. Section 30(4) of the Small Business, Enterprise and Employment Act 2015( 7 ) requires that a report published under this regulation must, in particular—

(a) set out the objectives intended to be achieved by the regulatory provisions referred to in sub-paragraph (1)(a);

(b) assess the extent to which those objectives are achieved;

(c) assess whether those objectives remain appropriate; and

(d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(3) In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).