Before Schedule 1 to the Employment Rights Act 1996 insert—
Schedule A1
Agency workers: guaranteed hours and rights relating to shifts
Section 27BV
Part 1
Right to guaranteed hours
Right for qualifying agency workers to be offered guaranteed hours
1
1
A hirer must make a guaranteed hours offer to an agency worker in accordance with paragraph 2 after the end of every period—
a
that is a reference period in relation to that agency worker and that hirer, and
b
in relation to which the agency worker is a qualifying agency worker of the hirer.
2
Paragraph 5 makes provision for exceptions to this duty, including in certain cases where the agency worker stops working for and under the supervision and direction of the hirer.
3
An agency worker is a qualifying agency worker of a hirer in relation to a reference period if—
a
during the reference period the agency worker worked for and under the supervision and direction of the hirer for a number of hours (the “reference period hours”),
b
the reference period hours satisfy such conditions as to number, regularity or otherwise as are specified, and
c
when the agency worker worked the reference period hours, it was not as an excluded agency worker.
4
In relation to an agency worker and a hirer for and under the supervision and direction of whom the agency worker works, each of the following is a “reference period”—
a
the initial reference period, and
b
each subsequent reference period.
5
“The initial reference period”, in relation to an agency worker and a hirer for and under the supervision and direction of whom the agency worker works, means the period—
a
beginning with—
i
where the agency worker is working for and under the supervision and direction of the hirer on the day on which sub-paragraph (1) comes into force (“the commencement day”), the commencement day, or
ii
where the agency worker is not so working, the first day after the commencement day on which the agency worker is working for and under the supervision and direction of the hirer, and
b
ending with the specified day.
6
A “subsequent reference period”, in relation to an agency worker and a hirer for and under the supervision and direction of whom the agency worker works, means a period beginning and ending with the specified days.
7
For the purposes of this Part of this Schedule—
a
references to a “hirer” are to a person for and under the supervision and direction of whom agency workers are supplied to work,
b
references to a “qualifying agency worker” are to an agency worker who is a qualifying agency worker of a hirer in relation to a reference period by virtue of sub-paragraph (3), and
c
the reference period in relation to which the agency worker is a qualifying agency worker of the hirer is referred to as “the relevant reference period”.
8
Nothing in this Part of this Schedule prevents a hirer from making one or more other offers to a qualifying agency worker to enter into a worker’s contract, at the same time as making a guaranteed hours offer.
9
Regulations made under sub-paragraph (3)(b), (5) or (6) may, in particular, include provision to take account of time when an agency worker does not work for a specified reason.
10
Before making—
a
the first regulations to be made under sub-paragraph (5), the Secretary of State must consult such persons as the Secretary of State considers appropriate about when the initial reference period is to end;
b
the first regulations to be made under sub-paragraph (6), the Secretary of State must consult such persons as the Secretary of State considers appropriate about when a subsequent reference period is to begin and end.
11
In this paragraph, “excluded agency worker” means an agency worker who is of a specified description.
Requirements relating to a guaranteed hours offer
2
1
An offer by a hirer to a qualifying agency worker is a guaranteed hours offer for the purposes of this Part of this Schedule if it is an offer to enter into a worker’s contract and the worker’s contract will require the hirer to provide the qualifying agency worker with work, and the qualifying agency worker to do work, for a number of hours that reflects the reference period hours in the relevant reference period.
2
The Secretary of State may by regulations provide that an offer by a hirer to a qualifying agency worker is a guaranteed hours offer for the purposes of this Part of this Schedule only if it also satisfies the condition in sub-paragraph (3).
3
The condition referred to in sub-paragraph (2) is that—
a
the offer sets out—
i
the days of the week, and the times on those days, when the offered number of hours are to be provided and worked, or
ii
a working pattern of days, and times of day, by reference to which the offered number of hours are to be provided and worked, and
b
those days and times reflect, or that pattern reflects, when the qualifying agency worker worked the reference period hours in the relevant reference period.
4
Where no regulations are in force under sub-paragraph (2) that apply in relation to an offer by a hirer to a qualifying agency worker, the offer is a guaranteed hours offer for the purposes of this Part of this Schedule only if it also proposes terms and conditions relating to when the offered number of hours are to be provided and worked (which need not be on particular days of the week, or at particular times on those days, or by reference to a particular working pattern of days or times of day).
5
The Secretary of State may by regulations make provision about how it is to be determined—
a
whether an offer reflects the number of hours worked by a qualifying agency worker during a reference period;
b
where regulations are in force under sub-paragraph (2) that apply in relation to an offer, whether the offer reflects when hours were worked by a qualifying agency worker during a reference period.
6
A guaranteed hours offer—
a
must not propose a worker’s contract that is a limited-term contract unless it is reasonable for it to be entered into as such a contract,
b
must propose terms and conditions of employment relating to pay that comply with paragraph 3, and
c
must propose terms and conditions of employment relating to additional matters—
i
that, taken as a whole, are no less favourable than the terms and conditions relating to additional matters that the qualifying agency worker had when working for and under the supervision and direction of the hirer during the relevant reference period, or
ii
where paragraph 4 applies, that comply with sub-paragraph (2) of that paragraph.
7
For the purposes of sub-paragraph (6)(a) it is reasonable for a worker’s contract to be entered into, between a hirer and a qualifying agency worker, as a limited-term contract only if—
a
it is reasonable for the hirer to consider that the qualifying agency worker is only needed to perform a specific task and the worker’s contract provides for termination when the task has been performed,
b
it is reasonable for the hirer to consider that the qualifying agency worker is only needed until the occurrence of an event (or the failure of an event to occur) and the worker’s contract provides for termination on the occurrence of the event (or the failure of the event to occur), or
c
it is reasonable for the hirer to consider that there is only a temporary need of a specified description (not falling within paragraph (a) or (b)) for the qualifying agency worker to do work under the worker’s contract and the worker’s contract is to expire at a time when it is reasonable for the hirer to consider that the temporary need will come to an end.
8
Before making the first regulations to be made under sub-paragraph (7)(c) the Secretary of State must consult—
a
such persons representing the interests of agency workers who do seasonal work as the Secretary of State considers appropriate,
b
such persons representing the interests of hirers to whom agency workers are supplied to do seasonal work as the Secretary of State considers appropriate, and
c
such other persons as the Secretary of State considers appropriate.
9
For the purposes of sub-paragraphs (6)(b) and (10), terms and conditions of employment relate to “pay” if they relate to any sums payable to a worker in connection with the worker’s employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under contract or otherwise.
10
For the purposes of sub-paragraph (6)(c), terms and conditions of employment relate to “additional matters” if—
a
they are not terms and conditions that are required by or under sub-paragraphs (1) and (2) or sub-paragraphs (1) and (4);
b
they do not relate to length of employment;
c
they do not relate to pay.
11
A guaranteed hours offer—
a
must be made by no later than the specified day,
b
must be made in the specified form and manner, and
c
must be accompanied by specified information relating to the offer.
12
The Secretary of State may by regulations make provision about when a guaranteed hours offer is to be treated as having been made.
13
In this paragraph, “reference period hours”, in relation to a qualifying agency worker and a relevant reference period, has the same meaning as in paragraph 1(3).
Requirements relating to a guaranteed hours offer: terms and conditions relating to pay
3
1
Terms and conditions of employment relating to pay that are proposed by a guaranteed hours offer made by a hirer to a qualifying agency worker in respect of a relevant reference period comply with this paragraph if any of conditions A to D is met in relation to those terms and conditions.
2
Condition A is that the terms and conditions of employment relating to pay are no less favourable than the most favourable terms and conditions relating to pay that the qualifying agency worker had when working for and under the supervision and direction of the hirer during the relevant reference period.
3
Condition B is that—
a
the terms and conditions of employment relating to pay do not meet condition A but are no less favourable than the least favourable terms and conditions relating to pay that the qualifying agency worker had when working for and under the supervision and direction of the hirer during the relevant reference period, and
b
the proposal of those terms by the hirer constitutes a proportionate means of achieving a legitimate aim.
4
Condition C is that the terms and conditions of employment relating to pay are no less favourable than—
a
where there was only one comparable worker in relation to the qualifying agency worker at the end of the relevant reference period, the terms and conditions of employment relating to pay that the comparable worker had at the end of that period, or
b
where there was more than one such comparable worker, the most favourable terms and conditions of employment relating to pay that a comparable worker had at the end of the relevant reference period.
5
Condition D is that, where there was more than one comparable worker in relation to the qualifying agency worker at the end of the relevant reference period—
a
the terms and conditions of employment relating to pay do not meet condition C but are no less favourable than the terms and conditions of employment relating to pay that at least one comparable worker had at the end of the relevant reference period, and
b
the proposal of those terms by the hirer constitutes a proportionate means of achieving a legitimate aim.
6
If a hirer relies on any of sub-paragraphs (3) to (5) when making a guaranteed hours offer to a qualifying agency worker, the hirer must give a notice to the qualifying agency worker that—
a
states that the hirer has done so, and
b
where sub-paragraph (3)(b) or (5)(b) applies, explains how the proposed terms and conditions constitute a proportionate means of achieving a legitimate aim.
7
A notice under sub-paragraph (6) must be given by no later than the same day, and in the same form and manner, as the guaranteed hours offer (see paragraph 2(11)).
8
For the purposes of this paragraph a worker is a “comparable worker”, in relation to an agency worker who works for and under the supervision and direction of a hirer, if—
a
the worker is employed by the hirer to do the same or broadly similar work as the agency worker, having regard, where relevant, to whether the worker and the agency worker have a similar level of qualification and skills, and
b
the worker is employed by the hirer to work at the same place as the agency worker or, where there is no worker employed by the hirer at that place who does the same or broadly similar work as the agency worker, at any other place.
9
Paragraph 2(9) (when terms and conditions of employment relate to pay) applies for the purposes of this paragraph as it applies for the purposes of paragraph 2(6)(b) and (10).
10
References in this paragraph to terms and conditions relating to pay that an agency worker had when working for and under the supervision and direction of a hirer are references to any sums payable to the agency worker in connection with that work, including any fee, bonus, commission, holiday pay or other emolument referable to the work, whether payable under contract or otherwise.
Requirements relating to a guaranteed hours offer: supplementary
4
1
This paragraph applies where, during the relevant reference period, the terms and conditions relating to additional matters that the qualifying agency worker had when working for and under the supervision and direction of the hirer were not the same throughout the relevant reference period.
2
Where this paragraph applies, the guaranteed hours offer may propose terms and conditions of employment relating to additional matters that, taken as a whole, are less favourable than the most favourable terms and conditions relating to additional matters that the qualifying agency worker had when working for and under the supervision and direction of the hirer during the relevant reference period, but only if—
a
those proposed terms and conditions, taken as a whole, are no less favourable than the least favourable terms and conditions relating to additional matters that the qualifying agency worker had when working for and under the supervision and direction of the hirer during the relevant reference period, and
b
the proposal of those terms by the hirer constitutes a proportionate means of achieving a legitimate aim.
3
If a hirer relies on sub-paragraph (2) when making a guaranteed hours offer to a qualifying agency worker, the hirer must give to the qualifying agency worker a notice that—
a
states that the hirer has done so, and
b
explains how the proposed terms and conditions constitute a proportionate means of achieving a legitimate aim.
4
A notice under sub-paragraph (3) must be given by no later than the same day, and in the same form and manner, as the guaranteed hours offer (see paragraph 2(11)).
5
Paragraph 2(10) (when terms and conditions of employment relate to additional matters) applies for the purposes of this paragraph as it applies for the purposes of paragraph 2(6)(c).
Guaranteed hours offer: exceptions to duty to make offer and withdrawal of offer
5
1
The duty imposed by paragraph 1(1) on a hirer in relation to a qualifying agency worker does not apply if, during the relevant reference period or the offer period, the qualifying agency worker stops working for and under the supervision and direction of the hirer in relevant circumstances.
2
A guaranteed hours offer made by a hirer to a qualifying agency worker is to be treated as having been withdrawn if, during the response period, the qualifying agency worker stops working for and under the supervision and direction of the hirer in relevant circumstances.
3
Relevant circumstances occur where—
a
the qualifying agency worker declines to continue working under the supervision and direction of the hirer other than in circumstances in which the qualifying agency worker is entitled to do so without notice by reason of the hirer’s conduct;
b
the hirer tells the work-finding agency, or other person, that has been supplying the qualifying agency worker to the hirer to stop supplying the qualifying agency worker and—
i
the hirer’s reason for doing so (or, if more than one, the hirer’s principal reason for doing so) is a qualifying reason, and
ii
in the circumstances (including the size and administrative resources of the hirer’s undertaking) the hirer has acted reasonably in treating the reason (or the principal reason) as a sufficient reason for telling the work-finding agency, or other person, to stop supplying the qualifying agency worker.
4
In sub-paragraph (3)(b), “qualifying reason”, in relation to a qualifying agency worker, means a reason falling within sub-paragraph (5) or some other substantial reason of a kind such as to justify telling a work-finding agency, or other person, to stop supplying an agency worker doing work of the kind which the qualifying agency worker was supplied to the hirer to do.
5
A reason falls within this sub-paragraph if it—
a
relates to the capability or qualifications of the qualifying agency worker to do work of the kind which the qualifying agency worker was supplied to the hirer to do,
b
relates to the conduct of the qualifying agency worker, or
c
is that the qualifying agency worker could not continue to do work of the kind which the qualifying agency worker was supplied to the hirer to do without contravention (whether on the part of the qualifying agency worker, on the part of the hirer or on the part of the work-finding agency or other person that supplied the qualifying agency worker) of a duty or restriction imposed by or under any legislation.
6
The Secretary of State may by regulations make provision for the duty imposed by paragraph 1(1) not to apply in relation to a reference period, or for a guaranteed hours offer that has been made to be treated as having been withdrawn, in other specified circumstances.
7
In exercising the power under sub-paragraph (6) the Secretary of State must, in particular, have regard to—
a
the benefit to agency workers of receiving a guaranteed hours offer under this Part of this Schedule, and
b
the desirability of preventing this Part of this Schedule from having a significant adverse effect on hirers who are dealing with exceptional circumstances.
8
Where, by virtue of sub-paragraph (2), a guaranteed hours offer made by a hirer to a qualifying agency worker is treated as having been withdrawn, the hirer must, by no later than the end of the response period, give a notice to the qualifying agency worker stating this to be the case.
9
Where, by virtue of regulations under sub-paragraph (6)—
a
a hirer who would otherwise have been subject to the duty imposed by paragraph 1(1) in relation to a qualifying agency worker and a particular reference period is not required to make a guaranteed hours offer to the qualifying agency worker, or
b
a guaranteed hours offer made by a hirer to a qualifying agency worker is treated as having been withdrawn,
the hirer must give a notice to the qualifying agency worker that states which provision of the regulations has produced the effect referred to in paragraph (a) or (b) (as the case may be).
10
A notice under sub-paragraph (9) must be given by a hirer to a qualifying agency worker—
a
where it is required to be given by virtue of paragraph (a) of that sub-paragraph, by no later than the end of the offer period;
b
where it is required to be given by virtue of paragraph (b) of that sub-paragraph, by no later than the end of the response period.
11
The Secretary of State may by regulations make provision about—
a
the form and manner in which a notice under sub-paragraph (8) or (9) must be given;
b
when a notice under sub-paragraph (8) or (9) is to be treated as having been given.
12
In this paragraph—
“capability”, in relation to a qualifying agency worker, means the qualifying agency worker’s capability assessed by reference to skill, aptitude, health or any other physical or mental quality;
“the offer period”, in relation to a qualifying agency worker and the hirer for and under the supervision and direction of whom the agency worker worked, means the period beginning with the day after the day on which the relevant reference period ends and ending with—
the day on which a guaranteed hours offer is made to the qualifying agency worker by the hirer, or
if no guaranteed hours offer is made before the day specified under paragraph 2(11)(a) as the last day on which the hirer may make such an offer to the qualifying agency worker, that last day;
“qualifications”, in relation to a qualifying agency worker, means any degree, diploma or other academic, technical or professional qualification relevant to the work which the qualifying agency worker is supplied to the hirer to do;
“the response period”, in relation to a guaranteed hours offer made to a qualifying agency worker, means the period—
beginning with the day after the day on which the offer is made, and
ending with the specified day.
Acceptance or rejection of a guaranteed hours offer
6
1
Where a hirer makes a guaranteed hours offer to a qualifying agency worker and the offer is not treated as having been withdrawn by virtue of paragraph 5(2) or regulations under paragraph 5(6), the qualifying agency worker may, by giving notice to the hirer before the end of the response period, accept or reject the offer.
2
Where a qualifying agency worker gives notice under sub-paragraph (1) accepting an offer, the qualifying agency worker and the hirer that made the offer are to be treated as entering into a worker’s contract in the terms of the offer on the day after the day on which notice is given.
3
But a qualifying agency worker and a hirer may agree, for the purposes of sub-paragraph (2), that the worker’s contract is to be treated as being entered into on a later day than the day mentioned in that sub-paragraph.
4
Where, by virtue of sub-paragraphs (2) and (3), a qualifying agency worker and a hirer are treated as entering into a worker’s contract on a day, and accordingly from that day the qualifying agency worker becomes a worker and the hirer becomes that worker’s employer, Chapter 2 of Part 2A applies in relation to that worker and that employer as if in section 27BA (employer’s duty to make a guaranteed hours offer) subsections (4)(a) and (5) (which provide for the initial reference period to be a reference period and define the initial reference period) were omitted.
5
If a qualifying agency worker to whom a guaranteed hours offer has been made does not give notice under sub-paragraph (1) before the end of the response period, the qualifying agency worker is to be treated as having rejected the offer.
6
The Secretary of State may by regulations make provision about—
a
the form and manner in which notice under sub-paragraph (1) must be given by a qualifying agency worker to a hirer;
b
when notice given by a qualifying agency worker to a hirer under sub-paragraph (1) is to be treated as having been given.
7
In this paragraph, “the response period” has the same meaning as in paragraph 5.
8
Where—
a
a hirer is permitted by section 27BY(3) to withdraw a guaranteed hours offer (withdrawal of offer following incorporation of terms of collective agreement), and
b
the hirer withdraws the offer by giving notice under that section,
sub-paragraph (1) of this paragraph ceases to apply in relation to the offer when the notice is given.
Information about rights conferred by Part <InternalLink Ref="p15659">1</InternalLink> of Schedule <InternalLink Ref="p15655">A1</InternalLink>
7
1
Where—
a
a work-finding agency has a worker’s contract or an arrangement with an agency worker by virtue of which the agency worker is (or is to be) supplied to work for and under the supervision and direction of a hirer, and
b
it is reasonable to consider that the agency worker might become a qualifying agency worker of a hirer in relation to a reference period (whether the initial reference period, or a subsequent reference period, as defined in paragraph 1),
the work-finding agency must take reasonable steps, within the initial information period, to ensure that the agency worker is aware of specified information relating to the rights conferred on agency workers by this Part of this Schedule.
2
A work-finding agency that is subject to the duty in sub-paragraph (1) in relation to an agency worker must take reasonable steps to ensure that, after the end of the initial information period, the agency worker continues to have access to the specified information referred to in that sub-paragraph at all times when—
a
the worker’s contract or (as the case may be) the arrangement so referred to continues to be in force, and
b
it is reasonable to consider that the agency worker might become (or might again become) a qualifying agency worker of a hirer in relation to a reference period.
3
“The initial information period”, in relation to an agency worker and the work-finding agency with which the agency worker has a worker’s contract or an arrangement by virtue of which the agency worker is (or is to be) supplied to work for and under the supervision and direction of a hirer, means the period of two weeks beginning with—
a
where the worker’s contract or arrangement is in force on the day on which paragraph 1(1) comes into force (“the commencement day”), the commencement day, or
b
where it is not in force on that day, the first day after the commencement day on which it is in force.
4
But where, on the day referred to in sub-paragraph (3)(a) or (b), it was not reasonable to consider that the agency worker might become a qualifying agency worker of a hirer in relation to any reference period, sub-paragraph (3) is to be read as if it provided for “the initial information period” to mean the period of two weeks beginning with the day on which it becomes reasonable so to consider.
Complaints to employment tribunals against a hirer: grounds
8
1
An agency worker may present a complaint to an employment tribunal that—
a
the duty imposed by paragraph 1(1) applies to a hirer in relation to the agency worker and a particular reference period, but
b
by the end of the last day of the offer period, the hirer has not made an offer to enter into a worker’s contract in compliance (or purported compliance) with that duty (whether because the hirer does not consider that the agency worker is a qualifying agency worker in relation to the reference period or for any other reason).
2
An agency worker may present a complaint to an employment tribunal that—
a
the duty imposed by paragraph 1(1) applies to a hirer in relation to the agency worker and a particular reference period, but
b
the offer that the hirer has made to the agency worker in relation to that reference period to enter into a worker’s contract is not a guaranteed hours offer as described in—
i
where regulations are in force under sub-paragraph (2) of paragraph 2 that apply in relation to the offer, sub-paragraphs (1) and (3) of that paragraph (read with any regulations in force under sub-paragraph (5)(a) or (b) of that paragraph), or
ii
where no regulations are in force under sub-paragraph (2) of paragraph 2 that apply in relation to the offer, sub-paragraphs (1) and (4) of that paragraph (read with any regulations in force under sub-paragraph (5)(a) of that paragraph).
3
An agency worker may present a complaint to an employment tribunal that—
a
the duty imposed by paragraph 1(1) applies to a hirer in relation to the agency worker and a particular reference period, but
b
the guaranteed hours offer that the hirer has made to the agency worker in relation to that reference period does not comply with paragraph 2(6).
4
An agency worker may present a complaint to an employment tribunal that—
a
the duty imposed by paragraph 1(1) applies to a hirer in relation to the agency worker and a particular reference period, but
b
the guaranteed hours offer that the hirer has made to the agency worker in relation to that reference period is on terms requiring the hirer to provide, and the agency worker to do, less work than would have been the case if the hirer had not, during that reference period—
i
limited (by whatever means) the number of hours of work that the agency worker was requested or required, by virtue of a worker’s contract or arrangement between the agency worker and a work-finding agency, to work for and under the supervision and direction of the hirer, or
ii
caused the agency worker to be requested or required, by virtue of a worker’s contract or arrangement between the agency worker and a work-finding agency, to work for and under the supervision and direction of the hirer in the way that the agency worker was,
for the sole or main purpose of the hirer being able to comply with the duty by making such a reduced offer.
5
An agency worker may present a complaint to an employment tribunal that the duty imposed by paragraph 1(1) would have applied to a hirer in relation to the agency worker and a particular reference period if the hirer had not, during that reference period—
a
limited (by whatever means) the number of hours of work that the agency worker was requested or required, by virtue of a worker’s contract or arrangement between the agency worker and a work-finding agency, to work for and under the supervision and direction of the hirer, or
b
caused the agency worker to be requested or required, by virtue of a worker’s contract or arrangement between the agency worker and a work-finding agency, to work for and under the supervision and direction of the hirer in the way that the agency worker was,
for the sole or main purpose of preventing the agency worker from satisfying, in relation to that reference period, the condition in paragraph 1(3)(a) or (b).
6
A complaint under sub-paragraph (2), (3) or (4)—
a
may be presented whether or not the offer in question has been accepted by the agency worker, but
b
may not be presented in relation to an offer that is—
i
treated as having been withdrawn by virtue of paragraph 5(2) or regulations under paragraph 5(6), or
ii
withdrawn in accordance with section 27BY(3) (withdrawal of offer following incorporation of terms of collective agreement).
7
An agency worker may present a complaint to an employment tribunal that a hirer—
a
has failed to give to the agency worker a notice under paragraph 5(8) or (9);
b
has given to the agency worker a notice under paragraph 5(8) or (9)(b) in circumstances in which the hirer should not have done so;
c
has given to the agency worker a notice in purported compliance with paragraph 5(9) that does not refer to any provision of the regulations or refers to the wrong provision.
8
In this paragraph, “the last day of the offer period”, in relation to a reference period, means the day specified under paragraph 2(11)(a) as the last day on which a guaranteed hours offer may be made in relation to that reference period.
Complaints to employment tribunals against a work-finding agency: grounds
9
1
An agency worker may present a complaint to an employment tribunal, against a relevant work-finding agency, that—
a
the duty imposed by paragraph 1(1) applies to a hirer in relation to the agency worker and a particular reference period, but
b
during that reference period the relevant work-finding agency—
i
limited (by whatever means, including termination of a worker’s contract or an arrangement) the number of hours of work that the agency worker was requested or required, by virtue of a worker’s contract or arrangement between the agency worker and the relevant work-finding agency, to work for and under the supervision and direction of the hirer, or
ii
caused the agency worker to be requested or required, by virtue of a worker’s contract or arrangement between the agency worker and the relevant work-finding agency, to work for and under the supervision and direction of the hirer in the way that the agency worker was,
for the sole or main purpose of enabling the hirer to comply with the duty by making an offer to the agency worker on terms requiring the hirer to provide, and the agency worker to do, less work than would otherwise have been the case.
2
An agency worker may present a complaint to an employment tribunal, against a relevant work-finding agency, that the duty imposed by paragraph 1(1) would have applied to a hirer in relation to the agency worker and a particular reference period if the relevant work-finding agency had not, during that reference period—
a
limited (by whatever means, including termination of a worker’s contract or an arrangement) the number of hours of work that the agency worker was requested or required, by virtue of a worker’s contract or arrangement between the agency worker and the relevant work-finding agency, to work for and under the supervision and direction of the hirer, or
b
caused the agency worker to be requested or required, by virtue of a worker’s contract or arrangement between the agency worker and the relevant work-finding agency, to work for and under the supervision and direction of the hirer in the way that the agency worker was,
for the sole or main purpose of preventing the agency worker from satisfying, in relation to that reference period, the condition in paragraph 1(3)(a)or (b).
3
A complaint under sub-paragraph (1)—
a
may be presented whether or not an offer has been made by the hirer to the agency worker and, if it has, whether or not the offer has been accepted by the agency worker, but
b
where an offer has been made, may not be presented where the offer is—
i
treated as having been withdrawn by virtue of paragraph 5(2) or regulations under paragraph 5(6), or
ii
withdrawn in accordance with section 27BY(3) (withdrawal of offer following incorporation of terms of collective agreement).
4
For the purposes of sub-paragraphs (1) and (2), references to a “relevant work-finding agency”, in relation to an agency worker, a hirer and a reference period, are to a work-finding agency with which the agency worker had a worker’s contract or arrangement by virtue of which the agency worker was (or could have been) supplied to work for and under the supervision and direction of the hirer during the reference period in question.
5
An agency worker may present a complaint to an employment tribunal that a work-finding agency has failed to comply with—
a
the duty imposed by paragraph 7(1);
b
the duty imposed by paragraph 7(2).
Complaints to employment tribunals: time limits
10
1
An employment tribunal must not consider a complaint under paragraph 8(1) unless it is presented before the end of the period of six months beginning with the day after the last day of the offer period (as defined in paragraph 8(8)).
2
An employment tribunal must not consider a complaint under paragraph 8(2) unless it is presented before the end of the period of six months beginning with the day after the day when the offer referred to in that provision is made.
3
An employment tribunal must not consider a complaint under paragraph 8(3) or (4) unless it is presented before the end of the period of six months beginning with the day after the day when the guaranteed hours offer referred to in that provision is made.
4
An employment tribunal must not consider a complaint under paragraph 8(5) or 9(2) unless it is presented before the end of the period of six months beginning with the day after what would have been the last day of the offer period (as defined in paragraph 8(8)) if the duty in paragraph 1(1) had applied.
5
An employment tribunal must not consider a complaint under paragraph 8(7)(a) relating to a notice unless it is presented before the end of the period of six months beginning with the day after the day on or before which the notice should have been given (see paragraph 5(8) and (10)).
6
An employment tribunal must not consider a complaint under paragraph 8(7)(b) or (c) relating to a notice unless it is presented before the end of the period of six months beginning with the day after the day on which the notice is given.
7
An employment tribunal must not consider a complaint under paragraph 9(1) unless it is presented before the end of the period of six months beginning with the day after the last day of the offer period (as defined in paragraph 8(8)).
8
An employment tribunal must not consider a complaint under paragraph 9(5)(a) unless it is presented before the end of the period of six months beginning with the day after the last day of the initial information period (see paragraph 7(3)and (4)).
9
An employment tribunal must not consider a complaint under paragraph 9(5)(b) unless it is presented before the end of the period of six months beginning with the day on which the agency worker first becomes aware of the failure to which the complaint relates.
10
But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint under paragraph 8 or 9 to be presented before the end of the relevant period of six months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
11
Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of sub-paragraphs (1) to (9).
Remedies
11
1
Where an employment tribunal finds a complaint under paragraph 8 or 9 well-founded, the tribunal—
a
must make a declaration to that effect, and
b
may make an award of compensation to be paid by the respondent to the agency worker.
2
The amount of compensation under sub-paragraph (1)(b) is to be such amount, not exceeding the permitted maximum, as the tribunal considers just and equitable in all the circumstances to compensate the agency worker for any financial loss sustained by the agency worker which is attributable to the matter complained of.
3
In ascertaining the financial loss sustained, the tribunal must apply the same rule concerning the duty of a person to mitigate their loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.
4
For the purposes of sub-paragraph (2), “the permitted maximum” is—
a
where the complaint is under paragraph 8(1), (2), (3) or (7) or 9(5), such number of weeks’ pay as the Secretary of State may specify in regulations;
b
where the complaint is under paragraph 8(4) or (5) or 9(1) or (2), such amount as the Secretary of State may specify in regulations.
5
For the purposes of determining the permitted maximum for an award of compensation to be paid by a hirer (where the complaint is under paragraph 8(1), (2), (3) or (7))—
a
the amount of a week’s pay is (subject to paragraph (b)) the amount of average weekly remuneration received by the agency worker for working for and under the supervision and direction of the hirer in the reference period in question;
b
the amount of a week’s pay is not to exceed the amount specified in section 227(1) (as amended from time to time).
6
For the purposes of determining the permitted maximum for an award of compensation to be paid by a work-finding agency (where the complaint is under paragraph 9(5))—
a
the amount of a week’s pay is (subject to paragraph (b)) the amount of average weekly remuneration received by the agency worker, in the relevant period, for working for and under the supervision and direction of a hirer (or, if more than one, all of the hirers taken together) by virtue of the worker’s contract or arrangement between the work-finding agency and the agency worker;
b
the amount of a week’s pay is not to exceed the amount specified in section 227(1) (as amended from time to time);
c
“the relevant period” means—
i
where the worker’s contract or arrangement between the agency worker and the work-finding agency ceased to be in force on or before the date the complaint was presented to the employment tribunal, the period of 12 weeks (or, if it was not in force for 12 weeks, the shorter period for which it was in force) ending with the latest day before the last day on which it was in force on which the agency worker worked for and under the supervision and direction of the hirer, or (if more than one) one of the hirers, referred to in paragraph (a);
ii
where the worker’s contract or arrangement between the agency worker and the work-finding agency did not so cease to be in force, the period of 12 weeks (or, if it had not then been in force for 12 weeks, the shorter period for which it had been in force) ending with the latest day before the date on which the complaint was presented to the employment tribunal on which the agency worker worked for and under the supervision and direction of the hirer, or (if more than one) one of the hirers, referred to in paragraph (a);
d
Chapter 2 of Part 14 does not apply (and this paragraph applies instead), where the agency worker to whom compensation is to be paid is an employee of the work-finding agency.
Power to change the effect of Part <InternalLink Ref="p15659">1</InternalLink> of Schedule <InternalLink Ref="p15655">A1</InternalLink>
12
1
The Secretary of State may by regulations make provision that, in relation to specified descriptions of agency workers, has the effect that—
a
a hirer is not required by this Part of this Schedule to make a guaranteed hours offer, and
b
a work-finding agency, or another person involved in the supply or payment of an agency worker, is instead required to make a corresponding or similar offer (and is liable to have a complaint against them presented to an employment tribunal on grounds corresponding or similar to those in paragraph 8).
2
The provision referred to in sub-paragraph (1) may be made by amending this Act (or otherwise).
3
Regulations under sub-paragraph (1) may make consequential provision, including provision amending—
a
an Act of Parliament (including this Act);
b
a Measure or Act of the National Assembly for Wales or an Act of Senedd Cymru;
c
an Act of the Scottish Parliament.
Part 2
Shifts: rights to reasonable notice
Application of Part <InternalLink Ref="p16984">2</InternalLink> of Schedule <InternalLink Ref="p15655">A1</InternalLink>
13
1
This Part of this Schedule applies in relation to a shift that would be (or would have been) worked, or is being worked, by an individual as an agency worker.
2
But nothing in this Part of this Schedule applies in relation to a shift that would be (or would have been) worked, or is being worked, by an individual as an agency worker if, in relation to the agency worker, the shift is an excluded shift.
3
For the purposes of this Part of this Schedule, “excluded shift”, in relation to an agency worker, means a shift of a specified description.
4
Regulations under sub-paragraph (3) may, in particular, specify a description of shift by reference to—
a
the amount payable for working the shift being more than a specified amount;
b
the number of hours to be worked during the shift, whether alone or taken together with other shifts of a specified description, being more than a specified number;
c
the shift corresponding to the time of a shift provided for by a worker’s contract between the agency worker and a work-finding agency or another person involved in the supply or payment of the agency worker (and where the regulations so specify a description of shift, the regulations may include provision similar or corresponding to section 27BJ(6)).
5
In the application of this Part of this Schedule in relation to an agency worker and a shift, references to—
a
“the work-finding agency” are to the work-finding agency with which the agency worker has a worker’s contract or an arrangement and by virtue of which the agency worker would work (or would have worked) or is working the shift;
b
“the hirer” are to the person for and under the supervision and direction of whom the agency worker would work (or would have worked) or is working the shift.
Right to reasonable notice of a shift
14
1
An agency worker is entitled to be given, by the work-finding agency or the hirer, reasonable notice of a shift that the agency worker is requested or required to work by virtue of the worker’s contract or arrangement that the agency worker has with the work-finding agency.
2
It is to be presumed, unless the contrary is shown, that notice of a shift is not reasonable notice if it is given less than a specified amount of time before the shift is due to start.
3
In this paragraph and paragraphs 15 and 16, “notice of a shift” means notice of how many hours are to be worked during the shift and when the shift is to start and end.
Right to reasonable notice of cancellation of or change to a shift
15
1
Sub-paragraph (2) applies in relation to an agency worker where—
a
the agency worker has been given notice of a shift by the work-finding agency or the hirer, and
b
where the shift is one that the agency worker has been requested (rather than required) to work, the agency worker has agreed to work it.
2
The agency worker is entitled to be given, by the work-finding agency or the hirer, reasonable notice of—
a
the cancellation of the shift;
b
any change requested or required by virtue of the worker’s contract or arrangement that the agency worker has with the work-finding agency consisting of—
i
a change to when the shift is to start or end;
ii
a reduction in the number of hours to be worked during the shift because of a break in the shift;
(but this is subject to paragraph 18).
3
It is to be presumed, unless the contrary is shown, that—
a
notice of the cancellation of a shift is not reasonable notice for the purposes of sub-paragraph (2) if it is given less than a specified amount of time before the shift would have started (if the shift had not been cancelled);
b
notice of a change to when a shift is to start is not reasonable notice for the purposes of sub-paragraph (2) if it is given less than a specified amount of time before the earlier of—
i
when the shift would have started (if the shift had not been changed), and
ii
when the shift is due to start (having been changed);
c
notice of any other change to a shift is not reasonable notice for the purposes of sub-paragraph (2) if it is given—
i
less than a specified amount of time before the shift is due to start;
ii
on or after the start of the shift.
Paragraphs <InternalLink Ref="p17036">14</InternalLink> and <InternalLink Ref="p17054">15</InternalLink>: liability of work-finding agency and hirer
16
1
The work-finding agency is liable for a breach of paragraph 14 or 15, in relation to an agency worker and a shift, to the extent that it is responsible for the breach.
2
The hirer is liable for a breach of paragraph 14 or 15, in relation to an agency worker and a shift, to the extent that it is responsible for the breach.
3
For the purposes of this Part of this Schedule, the hirer is not responsible for a breach of paragraph 14 or 15 in relation to an agency worker and a shift (and accordingly is not liable for the breach) if—
a
the hirer gives notice to the work-finding agency of the shift or (as the case may be) of the cancellation of, or change to, the shift, and
b
that notice is such as to enable the work-finding agency to give reasonable notice to the agency worker under paragraph 14 or 15.
4
The Secretary of State may by regulations provide, in relation to an agency worker and a shift, that the work-finding agency is solely responsible for a breach of paragraph 14 or 15 (and accordingly is solely liable for the breach) where the hirer is a person of a specified description.
Paragraphs <InternalLink Ref="p17036">14</InternalLink> to <InternalLink Ref="p17131">16</InternalLink>: supplementary
17
1
Where an agency worker suggests working a shift and the work-finding agency or the hirer agrees to the suggestion—
a
nothing in paragraph 14 applies in relation to the shift as suggested by the agency worker, but
b
paragraph 15(2) applies (even though the conditions in paragraph 15(1) have not been met).
2
In paragraphs 14 and 15, references to a request made to an agency worker to work a shift include a request (a “multi-worker request”) made to the agency worker and one or more others in circumstances where not all of those to whom the request is made are needed to work the shift.
3
For the purposes of paragraph 15, where a multi-worker request has been made to an agency worker in relation to a shift, references to the cancellation of the shift include the agency worker not being needed to work the shift because one or more others have agreed to work it.
4
The Secretary of State may by regulations make provision about—
a
the form and manner in which notices under paragraphs 14 to 16 must be given;
b
when notice under those paragraphs is to be treated as having been given.
Interaction with Part 3 of Schedule <InternalLink Ref="p15655">A1</InternalLink>
18
1
Where a work-finding agency—
a
is required to make a payment to an agency worker under paragraph 22(1) in relation to a shift that is cancelled, moved or curtailed at short notice, or
b
would have been required to make such a payment in relation to the shift but for provision made under paragraph 24(1)(c),
nothing in paragraph 15(2) is to be taken to have applied in relation to the cancellation, movement or curtailment of the shift that gave rise to, or would have given rise to, the requirement to make the payment.
2
Terms used in this paragraph have the same meaning as in paragraph 22.
Complaints to employment tribunals
19
1
An agency worker may present a complaint to an employment tribunal that the work-finding agency or the hirer is liable for a breach of paragraph 14 or 15 in relation to the agency worker and a shift.
2
Where, in determining whether a complaint under this paragraph is well-founded, the tribunal must determine whether reasonable notice has been given, the tribunal must have regard, in particular, to such of the specified matters as are appropriate in the circumstances.
3
An employment tribunal must not consider a complaint under this paragraph unless it is presented before the end of the period of six months beginning with—
a
where the complaint is that the work-finding agency or the hirer is liable for a breach of paragraph 14 in relation to the agency worker and a shift, the day on which the shift was due to start;
b
where the complaint is that the work-finding agency or the hirer is liable for a breach of paragraph 15(2) in relation to the agency worker and the cancellation of a shift, the day on which the shift would have started (if the shift had not been cancelled);
c
where the complaint is that the work-finding agency or the hirer is liable for a breach of paragraph 15(2) in relation to the agency worker and a change to a shift, the day on which the shift as changed was due to start or, where the shift was changed on or after its start, the day on which the shift started.
4
But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of six months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
5
Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of sub-paragraph (3).
Remedies
20
1
Where an employment tribunal finds a complaint under paragraph 19 well-founded, the tribunal—
a
must make a declaration to that effect, and
b
may make an award of compensation to be paid by the respondent to the agency worker.
2
The amount of compensation under sub-paragraph (1)(b) in relation to a complaint is to be such amount, not exceeding the specified amount, as the tribunal considers just and equitable in all the circumstances to compensate the agency worker for any financial loss sustained by the agency worker which is attributable to the matter complained of.
3
In ascertaining the financial loss sustained, the tribunal must apply the same rule concerning the duty of a person to mitigate their loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.
4
Where an employment tribunal makes an award of compensation under sub-paragraph (1)(b) to an agency worker in relation to a shift and both the work-finding agency and the hirer are respondents, the amount of compensation payable by each respondent is to be such amount (if any) as the tribunal considers just and equitable having regard to the extent of each respondent’s responsibility for the breach to which the complaint relates.
Part 3
Right to payment for cancelled, moved and curtailed shifts
Application of Part 3 of Schedule <InternalLink Ref="p15655">A1</InternalLink>
21
1
This Part of this Schedule applies in relation to a shift that would be (or would have been) worked, or is being worked, by an individual as an agency worker.
2
In the application of this Part of this Schedule in relation to an agency worker and a shift, references to—
a
“the work-finding agency” are to the work-finding agency with which the agency worker has a worker’s contract or an arrangement and by virtue of which the agency worker would work (or would have worked) or is working the shift;
b
“the hirer” are to the person for and under the supervision and direction of whom the agency worker would work (or would have worked) or is working the shift.
Right to payment for a cancelled, moved or curtailed shift
22
1
A work-finding agency must make a payment of a specified amount to an agency worker each time that, by virtue of the worker’s contract or arrangement that the agency worker has with the work-finding agency, there is a cancellation, movement or curtailment at short notice of a shift—
a
that the agency worker has been informed they are required to work for the hirer (by virtue of that worker’s contract or arrangement),
b
that the agency worker has been requested to work for the hirer (by virtue of that worker’s contract or arrangement) and the agency worker has agreed to work, or
c
that the agency worker has suggested working for the hirer and it has been agreed (by virtue of that worker’s contract or arrangement) that the agency worker is to work,
(but see paragraph 24 for exceptions to this duty).
2
A payment that a work-finding agency is required to make under sub-paragraph (1) must be made by no later than the specified day.
3
For the purposes of this Part of this Schedule, “short notice” means—
a
in relation to the cancellation of a shift, notice given less than a specified amount of time before the shift would have started (if the shift had not been cancelled);
b
in relation to the movement of a shift, or the movement and curtailment (at the same time) of a shift, notice given—
i
less than a specified amount of time before the earlier of when the shift would have started (if the shift had not been moved, or moved and curtailed) and when the shift is due to start (having been moved, or moved and curtailed);
ii
on or after the start of the shift;
c
in relation to the curtailment of a shift where there is a change to when the shift is to start (but there is no movement of the shift), notice given less than a specified amount of time before the earlier of—
i
when the shift would have started (if there had not been the change), and
ii
when the shift is due to start (the change having been made);
d
in relation to the curtailment of a shift where there is no change to when the shift is to start, notice given—
i
less than a specified amount of time before the shift is due to start;
ii
on or after the start of the shift.
4
The Secretary of State may by regulations make provision about when notice of the cancellation, movement or curtailment of a shift is to be treated as having been given to an agency worker for the purposes of this Part of this Schedule.
5
For the purposes of this Part of this Schedule, references to the movement of a shift (however expressed)—
a
are to any change to the time at which the shift is to start that is a change of more than a specified amount of time;
b
include—
i
where a shift is in two or more parts, a change of more than a specified amount of time to the time at which the second (or a subsequent) part is to start, and
ii
a division of a shift into two or more parts where the time between the parts is more than a specified amount of time,
but only if the change or division (as the case may be) results in the shift ending later.
6
In this Part of this Schedule, references to a request made to an agency worker to work a shift include a request (a “multi-worker request”) made to the agency worker and one or more others in circumstances where not all of those to whom the request is made are needed to work the shift.
7
For the purposes of this Part of this Schedule, where a multi-worker request has been made to an agency worker in relation to a shift, references to the cancellation of the shift include the agency worker not being needed to work the shift because one or more others have agreed to work it.
Regulations under paragraph <InternalLink Ref="p17358">22</InternalLink>: supplementary
23
1
Regulations under paragraph 22(1) may not specify an amount to be paid to an agency worker in relation to the cancellation, movement or curtailment of a shift that exceeds—
a
where the shift is cancelled, the amount of remuneration to which the agency worker would have been entitled had they worked the hours that will not be worked because of the cancellation;
b
where the shift is moved, or moved and curtailed (at the same time), and no part of the shift as moved, or as moved and curtailed, corresponds to the time of the shift (“the original shift”) before it was moved, or moved and curtailed, the amount of remuneration to which the agency worker would have been entitled had they worked the original shift;
c
where the shift is moved, or moved and curtailed (at the same time), and part of the shift as moved, or as moved and curtailed, corresponds to the time of the original shift (but part does not), the amount of remuneration to which the agency worker would have been entitled had they worked the part of the original shift that does not correspond to the shift as moved, or as moved and curtailed;
d
where the shift is—
i
curtailed but not moved, or
ii
moved and curtailed (at the same time) and the shift as moved and curtailed is to start and end within the time of the original shift,
the amount of remuneration to which the agency worker would have been entitled had they worked the hours that will not be worked because of the curtailment, or the movement and curtailment.
2
Regulations under paragraph 22(1)may, in particular, include provision specifying different amounts depending on the amount of notice that was given of the cancellation, movement or curtailment.
3
Regulations under paragraph 22(3) may not specify an amount of time that exceeds 7 days.
Exceptions to duty to make payment for a cancelled, moved or curtailed shift
24
1
The requirement to make a payment under paragraph 22(1) does not apply—
a
in relation to the cancellation, movement or curtailment of a shift if, in relation to the agency worker, the shift is an excluded shift;
b
in relation to the cancellation, movement or curtailment of a shift that an agency worker has been requested to work, unless the agency worker reasonably believed, whether on agreeing to work the shift or at some later time before the cancellation, movement or curtailment, that they would be needed to work the shift;
c
in other specified circumstances (whether circumstances relating to the work-finding agency, the hirer or otherwise).
2
In sub-paragraph (1)(a), “excluded shift”, in relation to an agency worker, means a shift of a specified description.
3
Regulations under sub-paragraph (2) may, in particular, specify a description of shift by reference to—
a
the amount payable for working the shift being more than a specified amount;
b
the number of hours to be worked during the shift, whether alone or taken together with other shifts of a specified description, being more than a specified number;
c
the shift corresponding to the time of a shift provided for by a worker’s contract between the agency worker and a work-finding agency or another person involved in the supply or payment of the agency worker (and where the regulations so specify a description of shift, the regulations may include provision similar or corresponding to section 27BP(4)).
4
Where, by virtue of regulations made under sub-paragraph (1)(c), a work-finding agency is not required to make a payment to an agency worker in relation to a shift under paragraph 22(1), the work-finding agency must give a notice to the agency worker that—
a
states which provision of the regulations has produced the effect that the work-finding agency is not required to make the payment, and
b
explains why the work-finding agency was entitled to rely on that provision so as not to make the payment to the agency worker under paragraph 22(1).
5
But sub-paragraph (4)(b) does not require a work-finding agency to disclose—
a
any information the disclosure of which by the work-finding agency would contravene the data protection legislation (but in determining whether a disclosure would do so, the duty imposed by that sub-paragraph is to be taken into account);
b
any information that is commercially sensitive;
c
any information the disclosure of which by the work-finding agency would constitute a breach of a duty of confidentiality owed by the work-finding agency to any other person.
6
In sub-paragraph (5)(a) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act).
7
The Secretary of State may by regulations make provision about—
a
the form and manner in which a notice under this paragraph must be given;
b
the day on or before which it must be given;
c
when a notice under this paragraph is to be treated as having been given.
8
The duty in sub-paragraph (4) is to be taken not to have applied if—
a
the work-finding agency or another person pays to the agency worker an amount in relation to a number of hours that is at least equal to the amount of the payment that the work-finding agency would have been required to make to the agency worker under paragraph 22(1) in relation to the same number of hours but for regulations made under sub-paragraph (1)(c), and
b
the payment is made on or before the day on which the payment under paragraph 22(1) would have had to be made if the work-finding agency had been required to make it.
9
Sub-paragraph (4) of paragraph 25 applies for the purposes of sub-paragraph (8) of this paragraph as it applies for the purposes of sub-paragraphs (2) and (3) of that paragraph.
Contractual remuneration
25
1
The right of an agency worker to receive a payment from a work-finding agency under paragraph 22(1) does not affect any right of the agency worker in relation to remuneration under a worker’s contract (whether with the work-finding agency or another person) (“contractual remuneration”).
2
Any contractual remuneration paid to an agency worker in relation to a number of hours goes towards discharging any liability of the work-finding agency to make a payment to the agency worker under paragraph 22(1) in relation to the same hours.
3
Any payment made by a work-finding agency to an agency worker under paragraph 22(1) in relation to a number of hours goes towards discharging any liability to pay contractual remuneration to the agency worker in relation to the same hours.
4
For the purposes of sub-paragraphs (2) and (3), the hours to which a payment under paragraph 22(1) relates are—
a
where a shift has been cancelled, the hours that would have been worked (by virtue of the worker’s contract or arrangement between the work-finding agency and the agency worker) if the shift had not been cancelled;
b
where a shift has been moved, or moved and curtailed (at the same time), and no part of the shift as moved, or as moved and curtailed, corresponds to the time of the shift (“the original shift”) before it was moved, or moved and curtailed, the hours that would have been worked (by virtue of the worker’s contract or arrangement between the work-finding agency and the agency worker) during the original shift;
c
where a shift has been moved, or moved and curtailed (at the same time), and part of the shift as moved, or as moved and curtailed, corresponds to the time of the original shift (but part does not), the hours that would have been worked (by virtue of the worker’s contract or arrangement between the work-finding agency and the agency worker) during the part of the original shift that does not correspond to the shift as moved, or as moved and curtailed;
d
where a shift has been—
i
curtailed but not moved, or
ii
moved and curtailed (at the same time) and the shift as moved and curtailed is to start and end within the time of the original shift,
the hours that would have been worked (by virtue of the worker’s contract or arrangement between the work-finding agency and the agency worker) if the shift had not been curtailed, or moved and curtailed.
Complaints to employment tribunal
26
1
An agency worker may present a complaint to an employment tribunal that, in relation to a shift, the work-finding agency—
a
has failed to make the whole or any part of a payment that the work-finding agency is liable to make to the agency worker under paragraph 22(1);
b
has unreasonably failed to give to the agency worker a notice under paragraph 24(4);
c
has given to the agency worker a notice in purported compliance with paragraph 24(4) that—
i
does not refer to any provision of the regulations or refers to the wrong provision;
ii
does not contain an explanation or contains an explanation that is inadequate or untrue.
2
An employment tribunal must not consider a complaint under sub-paragraph (1)(a) relating to a payment unless it is presented before the end of the period of six months beginning with the day after the day on or before which the payment should have been made (see paragraph 22(2)).
3
An employment tribunal must not consider a complaint under sub-paragraph (1)(b) relating to a notice unless it is presented before the end of the period of six months beginning with the day after the day on or before which the notice should have been given (see paragraph 24(7)(b)).
4
An employment tribunal must not consider a complaint under sub-paragraph (1)(c) relating to a notice unless it is presented before the end of the period of six months beginning with the day after the day on which the notice is given.
5
But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this paragraph to be presented before the end of the relevant period of six months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
6
Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of sub-paragraphs (2) to (4).
7
Where—
a
an agency worker presents a complaint to an employment tribunal under sub-paragraph (1)(c) that, in relation to a shift, the work-finding agency has given to the agency worker a notice in purported compliance with paragraph 24(4) that refers to the wrong provision of the regulations or contains an explanation that is inadequate or untrue, and
b
the work-finding agency claims that it was provided by the hirer with information for the purposes of the notice that was wrong, inadequate or untrue,
the work-finding agency may request the employment tribunal to direct that the hirer be added as a party to the proceedings.
8
A request under sub-paragraph (7) must be granted if it is made before the hearing of the complaint begins, but may be refused if it is made after that time; and no such request may be made after the tribunal has made its decision as to whether the complaint is well-founded.
9
The Secretary of State may by regulations provide that sub-paragraph (7) does not apply in relation to a hirer of a specified description.
Remedies
27
1
Where an employment tribunal finds a complaint under paragraph 26(1)(a) well-founded, the tribunal must—
a
make a declaration to that effect, and
b
order the work-finding agency to pay to the agency worker the amount of the payment under paragraph 22(1) which it finds is due to the agency worker.
2
Where an employment tribunal finds a complaint under paragraph 26(1)(b) or (c) well-founded, the tribunal—
a
must make a declaration to that effect, and
b
may order the work-finding agency to make a payment to the agency worker of such amount, not exceeding the specified amount, as the tribunal considers just and equitable in all the circumstances.
3
But an employment tribunal may not make an order under sub-paragraph (2)(b) relating to a notice given in purported compliance with paragraph 24(4) if the tribunal makes an order under sub-paragraph (1)(b) relating to the same payment to which the notice related.
4
In determining—
a
whether to make an order under sub-paragraph (2)(b), and
b
if so, how much to order the work-finding agency to pay,
an employment tribunal must have regard, in particular, to the seriousness of the matter complained of.
5
If, following the making of a request under paragraph 26(7), an employment tribunal has added the hirer as a party to the proceedings and the tribunal—
a
finds the complaint under paragraph 26(1)(c) well-founded (so far as relating to the notice referring to the wrong provision of the regulations or containing an explanation that is inadequate or untrue),
b
makes an award of compensation under sub-paragraph (2)(b), and
c
also finds that the hirer did provide the work-finding agency with information for the purposes of the notice that was wrong, inadequate or untrue,
it may order that the compensation is to be paid by the hirer instead of by the work-finding agency, or partly by the hirer and partly by the work-finding agency (with the amount of the compensation payable by each being such amount as the tribunal considers just and equitable in the circumstances).
6
Where an employment tribunal finds as described in sub-paragraph (5)(c), the hirer is to be treated for the purposes of section 12A and Part 2A of the Employment Tribunals Act 1996 (financial penalties) as an employer and as having breached the right of the agency worker to which the complaint under paragraph 26(1)(c) relates.
Recovery of payment by work-finding agency from hirer: pre-existing arrangements
28
1
Where, in compliance with paragraph 22(1), a work-finding agency makes a payment to an agency worker in relation to a shift that the agency worker was to be, or was, supplied to work by virtue of a pre-existing arrangement involving the work-finding agency and the hirer, the work-finding agency is entitled to recover from the hirer the proportion of the payment (up to the full amount of it) that reflects the hirer’s responsibility for the shift having been cancelled, moved or curtailed at short notice.
2
The Secretary of State may by regulations provide that sub-paragraph (1) does not apply in relation to a hirer of a specified description.
3
A “pre-existing arrangement” means an arrangement—
a
that was entered into on or before the last day of the period of two months beginning with the day on which the Employment Rights Act 2025 was passed, and
b
that has not been modified by the work-finding agency and the hirer after the last day of that period.
4
The reference in sub-paragraph (1) to a payment made in compliance with paragraph 22(1) includes a payment made by virtue of an order under paragraph 27(1)(b).
5
Sub-paragraph (1) applies whether the agency worker was to be, or was, supplied to work for and under the supervision and direction of the hirer by the work-finding agency or by another person.