Employers who use agency temporary staff The Agency Workers Regulations 2010 (AWR) came into force on 1 October 2011. should ensure they have procedures in place to comply with the changes.

All agency workers are entitled, from the first day of their assignment, to information on any job vacancies and to make use of collective facilities and amenities available to comparable workers and employees. These may include staff canteens, childcare facilities, transport services (such as local pick-ups and drop-offs and transport between sites – but not company car allowances or season ticket loans), staff common rooms, prayer rooms and car parking.

Employers should ensure that agency workers know how to access information relating to job vacancies and are aware of all relevant facilities. This can be done either by providing details directly to the worker, as part of an induction pack, or by providing details to the employment agency to pass on to the agency worker as part of the information on the assignment.

Agency Workers Who Have Completed a 12-Week Qualifying Period
Once an agency worker has worked in the same job for the same hirer for a period of 12 calendar weeks, they will be entitled to the same basic employment and working conditions as if they had been recruited directly by the employer. The qualifying period is not retrospective: an agency worker only starts to accrue the 12-week qualifying period from 1 October, even if the assignment started before the AWR came into force. The first date on which an agency worker can complete the qualifying period is therefore 24 December 2011.

Because the working patterns of agency workers can be irregular, the AWR provide for a number of circumstances in which breaks do not prevent them from completing the qualifying period. Employers are therefore advised to study the rules for calculating this period in order to avoid errors.

Basic employment and working conditions include:

• basic pay;
• duration of working time;
• annual leave;
• night work; and
• rest breaks and rest periods.

The rights with regard to pay include:

• basic pay based on the annual salary the agency worker would have received if recruited directly – this will usually be converted into an hourly or daily rate, taking into account any pay increments the worker would have received;
• overtime payments – subject to the same requirements as if the worker had been recruited directly;
• payment for annual leave;
• bonus or commission payments linked to the amount and quality of work completed – e.g. achievement of sales targets;
• bonuses linked to personal performance or non-contractual payments that are made with such regularity that they are customary;
• vouchers or stamps which have a monetary value and can be exchanged for money, goods or services – e.g. luncheon vouchers and childcare vouchers but not salary sacrifice schemes; and
• paid time off for antenatal appointments.

Some payments may require those recruited directly to complete a period of service – e.g. enhanced entitlement to annual leave after 12 months. An agency worker will need to complete the same period of service to become eligible. This should be calculated from the start of the 12-week qualifying period.

The rights with regard to pay do not include:

• occupational schemes – sick pay, maternity, paternity and adoption pay;
• redundancy and notice pay;
• payment for time off to carry out trade union duties;
• guarantee payments, as they apply to directly recruited staff if laid off;
• advances in pay – e.g. for season tickets;
• payments or rewards linked to financial participation schemes such as share ownership;
• the majority of benefits in kind – e.g. reduced-rate mortgages or employer-funded training allowances;
• bonuses where there is no recognition of a worker’s personal contribution, such as a flat rate bonus paid to the workforce to encourage loyalty or reward long service; and
• additional, non-contractual bonuses – as long as these payments are not made so often that they have become customary.

Agency workers will be covered by the new automatic pension enrolment which is being phased in between October 2012 and October 2016, depending on the size of the company.
To ensure equal treatment after 12 weeks’ service, employers who use agency workers should have in place proper job descriptions and pay structures for the rôles they perform. In addition, to facilitate calculation of the qualifying period, a record should be maintained showing the dates and hours worked, the location of their work and their job rôle. Employment agencies should be provided with information on the basic terms of comparable staff hired directly by the employer.
The AWR contain anti-avoidance provisions which prevent a series of assignments being structured so as to prevent an agency worker from completing the qualifying period. Breaks between assignments will not, therefore, necessarily prevent agency workers from gaining the same basic employment and working conditions as staff recruited directly.

The Department for Business, Innovation & Skills has published detailed guidance on the AWR, which can be found at http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf.

For advice on implementing the AWR, please contact Nick Fentiman 01564 731660.

When giving a reference, an employer has a duty of care to an ex-employee to ensure that the information provided is true, accurate and fair.

In Jackson v Liverpool City Council, the Court of Appeal has given useful guidance on how to deal with the situation when concerns regarding an employee’s work come to light after he or she has left your employment.

Mark Jackson had worked as a social worker for Liverpool City Council (Liverpool) for 12 years before leaving to take up employment with Sefton Borough Council (Sefton). At that time, he received a favourable reference from his team manager at Liverpool. A year later, he applied for and was offered another post at Sefton, subject to satisfactory references. Although two such references were provided from previous employers, a reference provided by Liverpool contained some positive statements but also left two questions – whether or not Liverpool would re-employ Mr Jackson or if it knew of any reasons why Sefton should not employ him – unanswered and mentioned concerns about his record keeping. The referee stated that she could not elaborate as the concerns had arisen after Mr Jackson left Liverpool’s employment and had not been investigated. She did say, however, that they would have warranted a formal improvement plan rather than more serious disciplinary action had he remained with the Council. When she later received a phone call from Sefton seeking clarification, she made it clear that she was not in a position to answer the questions in ‘either a positive or negative manner’.

The offer of employment was withdrawn in light of the reference and Mr Jackson remained unemployed for a year. He brought a claim for damages in relation to the reference provided by Liverpool.

The County Court found that the reference provided by Liverpool was true and accurate but held it to be unfair because it carried with it an ‘unanswered, uninvestigated, unparticularised, unspecific allegation [...] which the ex-employee had no opportunity to refute or answer’. Liverpool could have investigated the matter or refused to provide a reference at all. Liverpool appealed against this decision.

The Court of Appeal had some sympathy for Mr Jackson but took the view that the reference could not be said to be unfair. In the Court’s view, Liverpool could not be criticised for providing a reference and, in the circumstances, could not be reasonably criticised for including within it a cautionary remark. Sefton’s conversation with the referee was highly relevant as it formed an integral part of the overall reference provided by Liverpool. The referee had made it clear that she could not answer the questions in either a positive or negative manner. It was then a matter for Sefton to raise the issues with Mr Jackson himself. Had Liverpool failed to provide a reference, it was likely that more serious adverse inferences would have been drawn as a consequence.

When a marriage breaks up, it is usual for the couple to separate physically as well as legally and in some cases the physical separation can be considerable. With the increase in international travel and residence abroad, marriages between persons of different nationalities are becoming increasingly common.

When a couple divorces and one of them wishes to return to their country of origin, this can cause particular problems where there are children. Strictly, it is a criminal offence for a divorced or separated person to take a child under the age of 16 abroad contrary to the wishes of their spouse, unless they have a residence order in respect of the child.

Recently, a number of cases have tested the limits of the previously established rule as regards taking children abroad, which was that permission should only be denied when there was a strong reason for so doing. This rule appears to be less strictly applied than before.

When a parent wishes to relocate children within the UK, problems can arise if the other parent objects to the move. In a recent case, an application by a mother to move her children to the Orkney Islands from the North East was objected to by her ex-husband. Evidence was given of the mixed views of the proposed move held by the children, who were between nine and 14 years old.

The Court of Appeal supported the family court’s ruling that the move should not proceed.

Regrettably, there are no hard and fast rules about what the courts will or will not think is acceptable in the event that a move (especially one to a quite different locality) is proposed, with each case being decided on its own facts.

For advice on all aspects of child custody and family law matters, contact Susan Biggs 01564 731662

When deciding whether or not an adjustment intended to remove a disadvantage faced by a disabled employee is reasonable, one of the factors that should be taken into account is how effective it will be. In Leeds Teaching Hospital NHS Trust v Foster, the Employment Appeal Tribunal (EAT) held that where there is a real prospect of an adjustment removing the disadvantage, that would make it reasonable. However, that does not mean that a less than real prospect would not be sufficient to make the adjustment a reasonable one.

Paul Foster worked as a senior security inspector for Leeds Teaching Hospital NHS Trust. In 2006, his relationship with his line manager broke down, and by October that year he was unable to work as a result of stress. He raised a grievance alleging that he had been bullied and harassed by his manager, but the Trust was slow to deal with this. In June 2007, a doctor in the occupational health department advised that Mr Foster’s stress was the result of problems at work and his return would not be possible until these had been resolved. In September 2007, Mr Foster was told that his grievance was dismissed. The Trust’s stance throughout was that this resolved the bullying issue and that Mr Foster’s grievance and his ill health were entirely separate issues.

In January 2008, it seemed possible that Mr Foster could be redeployed to a different department and the doctor confirmed that he was ready to return to work. However, the possibility failed to materialise. Mr Foster was offered one of two posts in the security department and was told that redeployment was not an option. His position was that a return to work in the security department was not possible as the problem that had caused his stress still existed. The Trust recommended that he be dismissed if his ill health prevented him from taking up either of the two posts offered. In the event, however, a decision was taken in June of that year to put Mr Foster on the redeployment register for three months to see if suitable alternative employment became available. An opportunity did arise, but ill health prevented Mr Foster from pursuing it.

By the end of September 2008, the manager at the heart of Mr Foster’s grievance had left and the doctor believed a phased return to work in the security department would be possible. In the event, this did not happen. Mr Foster had concerns he wished to discuss but was told that he would have to raise a fresh grievance. By November 2008, the doctor advised that Mr Foster was unfit for work and his situation was unlikely to change in the foreseeable future. In February 2009, he was dismissed. This decision was upheld at an internal appeal hearing in October 2009, although the appeal panel did find that there had been a ‘failure to manage the sickness absence’ and that the Trust’s attempt to separate this from the investigation of Mr Foster’s grievance had been fatally flawed.

The widow of a man who died after having made a will that provided only that she should have a life interest in the home they shared has won her claim that she should be beneficially entitled to a half share in the property.

The couple had fallen out and the husband amended his will to provide his wife with a legacy of £8,000 and a life interest (the right to use for her lifetime, but not legal ownership) in the house.

Under the terms of the will, she could reside in the house for life. Were she to move out, however, and the house to be sold, she would have no right to a share in the proceeds of sale. She contested the will under the Inheritance (Provision for Family and Dependants) Act 1975 and was successful. The man’s executor, his son by a previous marriage, appealed against the decision. The relationship between the two was deeply hostile.

The estate was relatively small, consisting of the house and other assets totalling less than £30,000.

The Court of Appeal ruled that the decision of the lower court to make financial provision for the man’s widow was correct. The small size of the estate and the fact that a property sale would allow a clean break between the woman and her stepson were two factors taken into account by the Court.

When a will fails to provide adequately for a dependant of the deceased, it may be possible to claim for appropriate provision to be made. Contact Susan Biggs for advice on your individual circumstances.