UK Offence Report

Contravention of The Agency Workers Regulations 2010

the instrument as a whole of The Agency Workers Regulations 2010

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

Contravening this instrument is an offence under section 33(1)(c) of the Health and Safety at Work etc. Act 1974. The instrument itself contains no offence-creating words.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
Not determined

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

Classifier’s reasoning: contravention offences of this kind are strict as to the breach; the fault position is governed by the parent Act and was not read from it.

What would breach the instrument as a whole?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing what the provision prohibits, or failing to do what it requires under the Agency Workers Regulations 2010.

Penalty

Mode of trial
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to section 33(1)(c) of the Health and Safety at Work etc. Act 1974.

the penalty is in the parent Act, not in this instrument.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
20 January 2010
In force from
1 October 2011
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations, which are made under section 2(2) of the European Communities Act 1972 (c.68), and sections 15(1), (2) and (5), 82(3) of, and paragraphs 7, 8 and 15(1) of Schedule 3 to the Health and Safety at Work etc Act 1974 (c.37) implement (in England and Wales and Scotland and, in relation to some provisions, also Northern Ireland) Council Directive 2008/104/EC of 19th November 2008 on temporary agency work (OJ L 327, 5.12.2008, p.9). This Directive establishes a general framework for protection of temporary agency workers. The Regulations provide certain rights for temporary agency workers including in relation to basic working and employment conditions. Regulations 2 to 4 provide definitions, including those of ‘agency worker’ and ‘temporary work agency’. Regulation 5 provides a right for the agency worker to the same basic working and employment conditions as the agency worker would have been entitled to if they had been recruited directly by the hirer. Regulation 6 specifies that it is terms and conditions in the hirer relating to pay, the duration of working time, night work, rest periods, rest breaks and annual leave that are relevant. Regulation 7 makes provision for a qualifying period, and sets out the conditions which need to be met to qualify for the right provided for by regulation 5. Regulation 8 sets out the consequences that arise when an agency worker has completed the qualifying period. Regulation 9 sets out the circumstances in which an agency worker is to be treated as having completed the qualifying period and, where applicable, is to be treated as continuing to be entitled to those rights. Regulation 10 disapplies regulation 5, insofar as it relates to pay, where a permanent contract of employment is entered into between a temporary work agency and the agency worker. It provides a number of conditions that must be fulfilled in relation to the form and terms of the permanent contract and for a minimum amount of pay to be paid to the agency worker between assignments. Regulation 11 sets out how that minimum amount of pay is to be calculated. Regulations 12 and 13 give rights to agency workers in relation to access to collective facilities and amenities provided by the hirer, and access to employment with the hirer. Regulation 14 deals with issues of liability. Agency workers are involved in a triangular relationship involving the temporary work agency and hirer. This regulation provides that the temporary work agency and hirer can both be liable to the extent that they are responsible for a breach of regulation 5, and sets out the circumstances in which a temporary work agency is not responsible for a breach of that regulation. Regulation 14 also provides that the hirer is liable for breaches of regulations 12 and 13. Regulation 15 makes provision in relation to restrictions on contracting out. Regulation 16 provides a right for the agency worker to receive information from the temporary work agency, or hirer as applicable, in relation to the rights and duties conferred by regulations 5, 12 and 13. Regulation 17 makes provision in relation to the right not to be unfairly dismissed or subjected to a detriment for a reason relating to these Regulations. Regulation 18 provides remedies for individuals, including compensation, by way of proceedings in employment tribunals. Regulation 18 includes provision for a minimum award of two weeks’ pay, and for an additional award of up to £5,000 where regulation 9 applies. Regulation 20 deals with the liability of employers and principals. Regulations 21 to 24 contain provisions which make the Regulations applicable to Crown employment, the armed services, the House of Lords, the House of Commons and the police service. Schedule 1 lists the particular provisions of these Regulations which extend to Northern Ireland. Schedule 2 contains consequential amendments to primary and secondary legislation (including in relation to disclosure of information about agency workers, collective bargaining and health and safety matters). An Impact Assessment report of the effect that these Regulations will have on the costs to business and a Transposition Note, showing how the Directive has been given effect by these Regulations, are available from the Employment Relations Directorate, Department for Business, Innovation and Skills, 1 Victoria Street, London SW1H 0ET. Copies of each have also been placed in the libraries of both Houses of Parliament.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.59.

Basis
the penalty comes from the enabling Act rather than from this instrument
Confidence
0.59 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source