Application of Part 2 of Schedule A1

12 (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(5A)).

(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

13 (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 14 and 15, “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

14 (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 17).

(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 13 and 14: liability of work-finding agency and hirer

15 (1) The work-finding agency is liable for a breach of paragraph 13 or 14, 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 13 or 14, 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 13 or 14 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 13 or 14.

(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 13 or 14 (and accordingly is solely liable for the breach) where the hirer is a person of a specified description.

Paragraphs 13 to 15: supplementary

16 (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 13 applies in relation to the shift as suggested by the agency worker, but

(b) paragraph 14(2) applies (even though the conditions in paragraph 14(1) have not been met).

(2) In paragraphs 13 and 14, 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 14, 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 13 to 15 must be given;

(b) when notice under those paragraphs is to be treated as having been given.

Interaction with Part 3 of Schedule A1

17 (1) Where a work-finding agency—

(a) is required to make a payment to an agency worker under paragraph 21(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 23(1)(c),

nothing in paragraph 14(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 21.

Complaints to employment tribunals

18 (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 13 or 14 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 13 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 14(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 14(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

19 (1) Where an employment tribunal finds a complaint under paragraph 18 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.