2020 No. 384
The Posted Workers (Agency Workers) Regulations 2020
Made
Laid before Parliament
Coming into force
The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 19721 in relation to employment rights and duties2.
The Secretary of State and the Lord Chancellor, acting jointly, in exercise of the powers conferred by section 18(8) and (9) of the Employment Tribunals Act 19963 and section 2(2) of the European Communities Act 1972, make the following Regulations.
Citation, commencement and extent1
1
These Regulations may be cited as the Posted Workers (Agency Workers) Regulations 2020 and come into force on 30th July 2020.
2
These Regulations extend to England and Wales, and Scotland.
Interpretation2
In these Regulations, a reference to a member State includes an EEA state, and “the 2010 Regulations” means the Agency Workers Regulations 20104.
Modifications to the Agency Workers Regulations 20103
1
The 2010 Regulations are to be read—
a
as if after regulation 13, there were inserted—
13AHirer to inform temporary work agency of posting to a different member State
A hirer that proposes to post an agency worker for a limited period to carry out work in the territory of a member State in which the agency worker does not normally work, must, within a reasonable time prior to the commencement of the posting, inform the temporary work agency of—
a
the member State of the posting; and
b
the date on which the posting will commence.
b
in accordance with the further modifications in the rest of this regulation.
2
Regulation 2 is to be read as if there were inserted after the definition of hirer—
“posting” means the posting of an agency worker in accordance with regulation 13A;
3
Regulation 14(6) is to be read as if for “or 13”, there were substituted “13, or 13A”.
4
Regulation 18 is to be read as if—
a
after paragraph (3), there were inserted—
3A
Subject to paragraph (3B), a temporary work agency may present a complaint to an employment tribunal that the hirer has failed to comply with regulation 13A5.
3B
Paragraph (3A) does not apply where a temporary work agency has commenced other civil proceedings against the hirer for the recovery of the same or substantially the same loss as would be pursued under paragraph (3A) and those proceedings are continuing.
b
in paragraph (4), after sub-paragraph (b)6, there were inserted—
c
in the case of an alleged failure to comply with regulation 13A, with the date that the temporary work agency becomes aware of the posting.
c
in paragraph (8), at the beginning of sub-paragraph (c), there were inserted “except in relation to a complaint that a hirer has failed to comply with regulation 13A,”;
d
in paragraph (10)—
i
after “paragraphs”, there were inserted “(11A),”;
ii
in sub-paragraph (b) after “infringement”, there were inserted “or breach.”;
e
in paragraph (11)—
i
at the beginning, for “The” there were substituted “Subject to paragraph (11A), the”;
ii
at the beginning of sub-paragraph (b), there were inserted “except in relation to a complaint of a failure by a hirer to comply with regulation 13A,”;
f
after paragraph (11), there were inserted—
11A
In respect of an award of compensation made to a temporary work agency for a breach by a hirer of regulation 13A, the loss shall be limited—
a
to losses arising out of any breach by the temporary work agency of the provisions of national law of a member State relating to the requirements under article 3(1) of the Posted Workers Directive, including where loss is incurred by the imposition of any EU penalty arising out of such a breach; and
b
to the extent only that the loss sustained is reasonably attributable to a breach by the hirer of regulation 13A.
11B
In paragraph (11A)—
“competent authority” means a competent authority designated by a member State for the purposes of Directive 2014/67/EU7;
“EU penalty” means a financial administrative penalty or fine including fees and surcharges relating to non-compliance with the provisions of national law of a member State relating to the Posted Workers Directive—
- a
imposed on a temporary work agency by a competent authority in a member State other than the United Kingdom; or
- b
confirmed by an administrative or judicial body in a member State other than the United Kingdom as payable by a temporary work agency;
“Posted Workers Directive” means Directive 96/71/EC8 as amended by Directive 2018/957/EU9.
Consequential modifications4
The Employment Tribunals Act 1996 is to be read as if in subsection (1) of section 1810—
a
after paragraph (z5), there were omitted “or”; and
b
after paragraph (z6), there were inserted—
, or
z7
under regulation 5 of the Posted Workers (Agency Workers) Regulations 2020.
Expiry of regulations 3 and 4 and saving provision5
1
Regulations 3 and 4 expire on IP completion day.
2
Despite the expiry of regulations 3 and 4, the 2010 Regulations and the Employment Tribunals Act 1996 are to continue to be read after IP completion day with the modifications made by regulations 3 and 4 so far as those regulations apply to cases where a temporary work agency brings or has brought a complaint under regulation 18 of the 2010 Regulations in relation to a posting which began prior to IP completion day.
Signed by the authority of the Lord Chancellor
(This note is not part of the Regulations)