Agency Pay parity

UK PROFESSIONAL DRIVERS FORUMS THE UK PROFESSIONAL DRIVERS FORUM (INTERACTIVE)
1

Been working for one of the supermarkets class 1 building up experience before hoperfully going onto the car transporters where 2 years is required. Few months left.

Recently it came to my attention that after working 3 months at a company (through an agency) you are lawfully entitled to not only the same pay as the companies own drivers, but other entitlements such as sick pay and holiday pay.

I decided to investigate this further and made an appointment with acas and explained to them my current situation. During the appointment, I found acas very thorough and they came back and quoted legislation under employment law.

Acas confirmed that provided your role is the same as the regular drivers and you have completed a full 3 months, then by law your pay should reflect that of the companies own drivers, in this case an additional £2.65 per hour.

Additionally, and not so many years ago, the regular drivers would park the truck up and go for a walk into a near by town and have a bite to eat and a brew. The company were deducting 45 minutes pay from their wages each day. However when the company discovered drivers were leaving the truck on their break, they decided to bring in a policy which meant they had to stay with the truck due to the value of the stock within.

As a result of this, the union stepped in and the drivers now have no pay deducted for their break.

Unfortunately that doesnt apply to agency drivers, who have the 45 minutes deducted.

When I recently spoke with another agency about this situation, they couldnt understand how the other agency were getting away with not paying pay parity.

I decided to take advantage of a free session with an employment solicitor who confirmed they would proceed the case to tribunal and advised to record all hours and shifts.

To date the difference in pay has reached over £2,000.

It appears that this is something, to some extent already known, however drivers decide not to pursue anything incase of losing shifts through the offending agency.

I have also head that some agencies are asking drivers to sign a document accepting that they will not be granted pay parity.

I post this to increase driver awareness and to highlight that the law stipulates what you are ENTITLED to.

To clarify regulation 10 of the Agency worker regulations (AWR) commonly known as the Swedish derogation gave workers the opportunity to opt out of pay parity after 12 weeks, provided the agency paid them between assignments.

An example would be if you did 4 months at Asda then you had no shifts for 2 months, but then did 4 months at Tesco, you would be paid during the 2 months with no work.

However this regulation was widely abused by agencies, leaving drivers out of pocket and as a result the Swedish derogation is being revoked.

If you are in a position where you are thinking you are owed pay parity, in the first instance ask your agency for a copy of all documents you signed when you registered with them. If it transpires you signed one of the opt out forms unwittingly, this does not necessarily mean you wont be entitled to money that is owed to you.

Makes me chuckle when the agency dangle the christmas bonus in front of you for cramming as many hours into your arse as you can, all they are doing is giving you the money your already entitled to.

It took me several months to obtain a copy of a booklet that outlines my terms of employment with the agency. Im still waiting, dispite numerous requests for copies of forms i signed, although i know i didnt sign anything related to pay parity

Read up guys otherwise youl get walked all over.

2

So the good news…

On 17th December 2018, a date I remember because of how much it’ll impact me as I’m paid £4/hr less than permies where I’m at, the government announced they were repealing the derogation. This means that from April next year agencies will no longer be able to use the derogation to get around paying you parity pay after 12 weeks. The only uncertainty is if the 12 week clock starts again in April so you don’t get parity pay until sometime in July.

I can’t wait. That derogation has cost me about £40,000 over the last 5 years and in that time I’ve had just 3 or 4 weeks in total over the 5 years where I’ve not had any work.

3

Conor:
So the good news…

I’m paid £4/hr less than permies where I’m at

You’ve always said you were paid more than the permanent drivers?

4

I thought one benefit of agency work was being paid more than a full time driver?

5

Conor; will agencies have to take into account the extra deductions taken from agency pay when calculating parity? In particular I am thinking about employer’s National Insurance.

6

I won’t…

Work any where that pays me less than the full time drivers.

Parity pay would mean I’d be earning less for the same job.

7

Thanks Hades3000,

I did not know that the Swedish Derogation was being repealed. The recent work I have done has not been too bad with regard to equal pay.

Fingers crossed your are successful in your case. Is your case against the agency and the supermarket then? Surely you could get a few more claimants to join? After all, if a decision is made in your favour, this should be binding.

However, would it not be better not to rock the boat until after you have finished? That way you get your shifts and claim the money later.

One point though, sick pay is not covered by AWR 2010, but a right to the same number of days holiday per year (pro rata) is. So if the company gives 31 days holiday instead of the legal minimum 28, this is the right.

It will be interesting to see how this pans out. Certain supermarket distribution centres are rammed full of agency staff not on equal pay. It could go two ways; either an attempted dodge or an acceptance of equal pay. In the case of the latter, it may indeed mean that supermarkets (for example) decide to take on more full-time staff rather than running with big percentages of agency staff. Can only be a positive thing and well overdue.

8

Harry Monk:

Conor:
So the good news…

I’m paid £4/hr less than permies where I’m at

You’ve always said you were paid more than the permanent drivers?

No, I’ve said that apart from where I’m currently at I’ve always been paid more than permanent drivers.

9

toonsy:
I thought one benefit of agency work was being paid more than a full time driver?

Indeed it is but at the higher paying companies like where I’m at where they don’t make their money out of the lorries they run it isn’t always the case.

yourhavingalarf:
I won’t…

Work any where that pays me less than the full time drivers.

I normally wouldn’t but given it is one if not the highest paying agency jobs in my area, it comes with 33 days paid hols instead of 28 and agency is pretty much the only way to get a job at what is by far the best place I’ve ever worked at then I’ll ■■■■ it up.

10

123smith:
Conor; will agencies have to take into account the extra deductions taken from agency pay when calculating parity? In particular I am thinking about employer’s National Insurance.

This applies to PAYE agency employees only, not Ltd or those doing self employment using an umbrella. An agency worker on PAYE does not have employers NI deducted from their wages unlike an agency worker being paid PAYE via an umbrella who works for the umbrella company, not the agency, the agency being a client of the umbrella company.

11

Noremac:
Thanks Hades3000,

I did not know that the Swedish Derogation was being repealed. The recent work I have done has not been too bad with regard to equal pay.

Fingers crossed your are successful in your case. Is your case against the agency and the supermarket then? Surely you could get a few more claimants to join? After all, if a decision is made in your favour, this should be binding.

However, would it not be better not to rock the boat until after you have finished? That way you get your shifts and claim the money later.

One point though, sick pay is not covered by AWR 2010, but a right to the same number of days holiday per year (pro rata) is. So if the company gives 31 days holiday instead of the legal minimum 28, this is the right.

It will be interesting to see how this pans out. Certain supermarket distribution centres are rammed full of agency staff not on equal pay. It could go two ways; either an attempted dodge or an acceptance of equal pay. In the case of the latter, it may indeed mean that supermarkets (for example) decide to take on more full-time staff rather than running with big percentages of agency staff. Can only be a positive thing and well overdue.

Hello Noremac, yes im not bringing any case at the moment, it would be when i leave, point im making is that Swedish derogation revoked or otherwise has no bearing on what you should be paid…for the majority of agency workers.

I understand that one agency has been fined for this already and a substantial fine at that. This particular agency now makes it clear in their vacancies that you will receive pay parity after 12 weeks.

12

If you have agreed a contract to work for the agency how can you sue them and you say you have seen a employment solicitor who’s paying him?

13

mac12:
If you have agreed a contract to work for the agency how can you sue them and you say you have seen a employment solicitor who’s paying him?

You can’t “agree” to be an employee for less than the minimum wage. Isn’t this similar?

14

What about when perm staff are salaried monthly based on a certain number of hours (let’s say 48) and then get anything above that paid as OT?

In my case, all the above but perm drivers also get a bonus of £12 per week for each of 4 categories (no accident, no tacho infringements, attendance (no sick/late/absent) and telematics) so a total of £48 per week on top of regular salary + OT (x1.5) + nights out if applicable. For telematics agency drivers can’t even be tracked because we don’t have ‘a unique number’…

To go even further, one of (the leading one) their agencies pays drivers according to ‘planned route hours’, where if it took you longer to complete a run than the hours planned then tough luck…I’m fortunate enough in that regard that my agency pays me for as many hours I worked each day/week or I would’ve left after my first payslip.

Do I, as an agency worker - not on assignment, on a 0 hour contract with no paid time for days with no work request ‘parity pay’? How does one even go about calculating what it is if they’re on a guaranteed monthly pay + bonuses and I’m on hourly pay? Seems like a bit of a stretch to me.

15

Franglais:

mac12:
If you have agreed a contract to work for the agency how can you sue them and you say you have seen a employment solicitor who’s paying him?

You can’t “agree” to be an employee for less than the minimum wage. Isn’t this similar?

He isn’t he’s working for less than others at the same company which if he’s got a contract with the agency is legal.

16

ETS do you have a contract that says they will pay you for maybe 8 hours in any week without work not just one day without work

17

mac12:

Franglais:

mac12:
If you have agreed a contract to work for the agency how can you sue them and you say you have seen a employment solicitor who’s paying him?

You can’t “agree” to be an employee for less than the minimum wage. Isn’t this similar?

He isn’t he’s working for less than others at the same company which if he’s got a contract with the agency is legal.

A contract can’t exempt an employee from receiving minimum pay, nor minimum holiday entitlement. Why should a contract exempt equal pay legislation?

18

mac12:
ETS do you have a contract that says they will pay you for maybe 8 hours in any week without work not just one day without work

I’ve signed so many ‘contracts’ with a number of agencies, I can’t remember. This is what I found on their website:

“Full automation of the 12-week qualifying clock guarantees our compliance with the equal pay provisions of AWR. Our system prevents us from assigning a worker to you after 12 weeks unless a compliant AWR solution is in place.” which sounds to me like “don’t worry, we got covered - no need for parity pay after 12 weeks”?

19

Franglais:

mac12:

Franglais:

mac12:
If you have agreed a contract to work for the agency how can you sue them and you say you have seen a employment solicitor who’s paying him?

You can’t “agree” to be an employee for less than the minimum wage. Isn’t this similar?

He isn’t he’s working for less than others at the same company which if he’s got a contract with the agency is legal.

A contract can’t exempt an employee from receiving minimum pay, nor minimum holiday entitlement. Why should a contract exempt equal pay legislation?

Nobody has said it does, but if he has a contract that says he works for the agency they pay him the agreed rate for the job which can be more or less than the company staff

20

ETS:

mac12:
ETS do you have a contract that says they will pay you for maybe 8 hours in any week without work not just one day without work

I’ve signed so many ‘contracts’ with a number of agencies, I can’t remember. This is what I found on their website:

“Full automation of the 12-week qualifying clock guarantees our compliance with the equal pay provisions of AWR. Our system prevents us from assigning a worker to you after 12 weeks unless a compliant AWR solution is in place.” which sounds to me like “don’t worry, we got covered - no need for parity pay after 12 weeks”?

I read that as they’ll not send you there after 12 weeks…