27BUA Agency workers

(1) In this Part, “agency worker” means an individual—

(a) who has a worker’s contract or an arrangement with a work-finding agency by virtue of which the individual is (or is to be) supplied to work for and under the supervision and direction of another person,

(b) who does not do (or is not to do) the work under a worker’s contract with the other person, and

(c) who is not (or is not to be) a party to a contract under which the individual undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.

(2) In this Part—

(a) references to an agency worker include, where the context requires, a former agency worker, and

(b) where that is the case, references in relation to the agency worker to a work-finding agency, and references (however expressed) to a person for and under the supervision and direction of whom the agency worker works, are to be read accordingly.

(3) An individual is an “agency worker” for the purposes of this Part—

(a) whether the individual is (or is to be) supplied to work for and under the supervision and direction of another person—

(i) by the work-finding agency referred to in subsection (1)(a), or

(ii) by a person other than the work-finding agency;

(b) whether the individual is (or is to be) paid, for work done for and under the supervision and direction of another person—

(i) by the work-finding agency referred to in subsection (1)(a), or

(ii) by a person other than the work-finding agency.

(4) In this Part, “work-finding agency” means a person carrying on the business (whether or not with a view to profit and whether or not in conjunction with any other business) of finding, or seeking to find, work for individuals to do for and under the supervision and direction of other persons (but not in the employment of those other persons).

(5) Part 1 of Schedule A1 contains provision about guaranteed hours and agency workers.

(6) Part 2 of Schedule A1 contains provision about rights of agency workers to reasonable notice in relation to shifts.

(7) Part 3 of Schedule A1 contains provision about rights of agency workers to payment for shifts that are cancelled, moved or curtailed at short notice.”

(2) Schedule (Agency workers: guaranteed hours and rights relating to shifts) inserts Schedule A1 into the Employment Rights Act 1996.”—(Justin Madders.)

This new clause adds a new clause (intended to go after clause 3) which provides a new definition of “agency worker” for the purposes of Part 2A of the Employment Rights Act 1996 and introduces the new Schedule inserted by NS1 which inserts a new Schedule A1 into the 1996 Act. Schedule A1 is to take the place of the regulation-making power in proposed new section 27BW of the 1996 Act which is removed by amendment 48.

Brought up, and read the First time.

I beg to move, That the Clause be read a Second time.

With this it will be convenient to discuss the following:

Government new Clause 33—Collective agreements: contracting out.

Government new clause 34—Collective redundancy consultation: protected period.

Government new clause 35—Duty to keep records relating to annual leave.

Government new clause 36—Extension of regulation of employment businesses.

Government new clause 37—Power to establish Social Care Negotiating Body.

Government new clause 38—Agency workers who are not otherwise “workers”.

New clause 1—Domestic abuse victims’ leave—

“(1) Within twelve months of the passage of this Act, the Secretary of State must make regulations entitling a worker who is a victim of domestic abuse to be absent from work on leave under this section.

(2) For the purposes of this section, “domestic abuse” is defined in accordance with sections 1 and 2 of the Domestic Abuse Act 2021.

(3) The regulations must include provision for determining—

(a) the extent of a worker's entitlement to leave under this section; and

(b) when leave under this section may be taken.

(4) Provision under subsection (3)(a) must secure that, where a worker is entitled to take leave under this section, that worker is entitled to―

(a) at least ten working days’ leave; and

(b) the benefit of the terms and conditions of employment which would have applied but for the absence.

(5) The regulations may―

(a) make provision about how leave under this section is to be taken;

(b) make different provision for different cases or circumstances; and

(c) make consequential provision.”

This new clause would require the Secretary of State to provide for statutory leave for victims of domestic abuse, with regulations providing for a minimum of ten days’ leave.

New clause 2—Domestic abuse: right not to suffer detriment—

“In Part V of the Employment Rights Act 1996 (Rights not to suffer detriment), after section 47G, insert new section 47H—

‘Domestic abuse

(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by their employer done on the ground that the worker has been, or is suspected to have been―

(a) a victim of domestic abuse; or

(b) affected directly by domestic abuse.

(2) For the purposes of this section, “domestic abuse” is defined in accordance with sections 1 and 2 of the Domestic Abuse Act 2021.’”

This new clause would amend the Employment Rights Act 1996 to protect workers from adverse treatment on the grounds that they are, or are suspected to be, a person affected by domestic abuse.

New clause 3—Dismissal for reasons related to domestic abuse—

“In Part 10 of the Employment Rights Act 1996, after section 99, insert—

‘99B Domestic abuse

(1) A worker who is dismissed shall be regarded for the purposes of this Part as having been unfairly dismissed if the reason for the dismissal is that the worker has been, or is suspected to have been―

(a) a victim of domestic abuse; or

(b) affected directly by domestic abuse.

(2) For the purposes of this section, “domestic abuse” is defined in accordance with sections 1 and 2 of the Domestic Abuse Act 2021.’”

This new clause would amend the Employment Rights Act 1996 to protect workers from dismissal on the grounds that they are, or are suspected to be, a victim or a person affected by domestic abuse.

New clause 4—Employers to take all reasonable steps to prevent domestic abuse—

“After section 40A of the Equality Act 2010 (employer duty to prevent sexual harassment of workers), insert—

‘40B Employer duty to prevent workers from experiencing domestic abuse

(1) An employer (A) must take all reasonable steps to prevent their workers from experiencing domestic abuse in the course of their employment.

(2) For the purposes of this section, “domestic abuse” is defined in accordance with sections 1 and 2 of the Domestic Abuse Act 2021.’”

This new clause would require employers to take all reasonable steps to prevent their workers from experiencing domestic abuse.

New clause 5—Employers to take all reasonable steps to prevent domestic abuse (contract workers)—

“After section 41 of the Equality Act 2010 (contract workers), insert—

‘41A Employer duty to prevent workers from experiencing domestic abuse

(1) An employer (A) must take all reasonable steps to prevent a contract worker working for or on behalf of (A) from experiencing domestic abuse in the course of their engagement.

(2) For the purposes of this section, “domestic abuse” is defined in accordance with sections 1 and 2 of the Domestic Abuse Act 2021.’”

This new clause would require employers to take all reasonable steps to prevent contract workers from experiencing domestic abuse.

New clause 6—Workplace contravention of Equality Act: obtaining information—

“(1) In this section—

(a) P is a worker who thinks that a contravention of the Equality Act 2010 has occurred in relation to P’s employment or working practices;

(b) R is P’s employer and P thinks that R is responsible for the contravention mentioned in paragraph (a).

(2) A Minister of the Crown must by order prescribe—

(a) forms by which P may question R on any matter which is or may be relevant to subsection (1);

(b) forms by which R may answer questions by P.

(3) A question by P or an answer by R is admissible as evidence in proceedings under this Act (whether or not the question or answer is contained in a prescribed form).

(4) A court or tribunal may draw an inference from—

(a) a failure by R to answer a question by P before the end of the period of 8 weeks beginning with the day on which the question is served;

(b) an evasive or equivocal answer.

(5) Subsection (4) does not apply if—

(a) R reasonably asserts that to have answered differently or at all might have prejudiced a criminal matter;

(b) R reasonably asserts that to have answered differently or at all would have revealed the reason for not commencing or not continuing criminal proceedings;

(c) R’s answer is of a kind specified for the purposes of this paragraph by order of a Minister of the Crown;

(d) R’s answer is given in circumstances specified for the purposes of this paragraph by order of a Minister of the Crown;

(e) R’s failure to answer occurs in circumstances specified for the purposes of this paragraph by order of a Minister of the Crown.

(6) The reference to a contravention of the Equality Act 2010 includes a reference to a breach of an equality clause or rule, insofar as it relates to employment or working practices.

(7) A Minister of the Crown may by order—

(a) prescribe the period within which a question must be served to be admissible under subsection (3);

(b) prescribe the manner in which a question by P, or an answer by R, may be served.

(8) This section—

(a) does not affect any other enactment or rule of law relating to interim or preliminary matters in proceedings before a county court, the sheriff or an employment tribunal, and

(b) has effect subject to any enactment or rule of law regulating the admissibility of evidence in such proceedings.”

This new clause would reintroduce, for workers in relation to employers, the right to statutory Discrimination Questionnaires pursuant to the Equality Act 2010 regarding age, disability, sex, race, sexual orientation, pregnancy and maternity, gender reassignment, religion or belief and marriage and civil partnership discrimination.

New clause 7—Protected paternity or parental partner leave—

“(1) Within six months of the passage of this Act, the Secretary of State must consult on the introduction of protected paternity or parental partner leave for all employees.

(2) A consultation under subsection (1) must consider―

(a) the minimum duration for a period of protected paternity or parental partner leave;

(b) how best to ensure that protected paternity or parental partner leave is protected, non-transferable and does not result in discrimination against the employee taking that leave;

(c) how best to ensure that protected paternity or parental partner leave reduces the risk of employees experiencing discrimination as a result of being eligible for ordinary maternity leave; and

(d) the extent to which the costs to employers of protected paternity or parental partner leave should be reimbursed, in full or in part, and the manner in which this should be achieved.

(3) Following a consultation under subsection (2), within twelve months of commencing the consultation, the Secretary of State must by regulations―

(a) introduce protected paternity or parental partner leave, ensuring that it is paid, protected and non-transferable;

(b) define the length of any period of protected paternity or parental partner leave under subsection (3)(a); and

(c) make provision for any other matters the Secretary of State considers relevant to the matters under subsections (3)(a) and (3)(b).

(4) For the purposes of this section—

(a) “protected” leave means leave during which an employer must not permit an employee who satisfies prescribed conditions to work; and

(b) “parental partner leave” means leave taken for the purposes of caring for a child, with the exception of maternity leave taken under sections 71 to 73 of the Employment Rights Act 1996.

(5) For the purposes of subsections (2)(b) and (2)(c), “discrimination” is defined according to sections 13 to 19 of the Equality Act 2010.”

This new clause would require the Secretary of State to consult on a period of protected paternity or parental partner leave, and require them to introduce protected paternity or parental partner leave by regulations at a subsequent date.

New clause 10—Carer’s leave: remuneration—

“(1) In section 80K of the Employment Rights Act 1996, omit subsection (3) and insert—

“(3) In subsection (1)(a), “terms and conditions of employment” includes—

(a) matters connected with an employee’s employment whether or not they arise under the contract of employment, and

(b) terms and conditions about remuneration.””

This new clause would make Carer’s Leave a paid entitlement.

New clause 12—Rates of statutory maternity pay, etc—

“(1) In regulation 6 of the Statutory Maternity Pay (General) Regulations 1986 (prescribed rate of statutory maternity pay) for “£184.03” substitute “£368.06”.

(2) In the Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) Regulations 2002—

(a) in regulation 2(a) (weekly rate of payment of statutory paternity pay) for “£184.03” substitute “£368.06”; and

(b) in regulation 3(a) (weekly rate of payment of statutory adoption pay) for “£184.03” substitute “£368.06”.

(3) In regulation 40(1)(a) of the Statutory Shared Parental Pay (General) Regulations 2014 (weekly rate of payment of statutory shared parental pay) for “£184.03” substitute “£368.06”.

(4) In regulation 20(1)(a) of the Statutory Parental Bereavement Pay (General) Regulations 2020 (weekly rate of payment) for “£184.03” substitute “£368.06”.”

This new clause sets out rates of Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay.

New clause 13—Publication of information about parental leave policies: regulations—

“(1) The Secretary of State must make regulations to require any employer with more than 250 employees to publish information on the internet about the employer’s policies on parental leave and pay for parental leave.

(2) Regulations under subsection (1) must be published within one year of this Act being passed.

(3) Regulations under this section are subject to the affirmative regulation procedure.”

This new clause would require companies with more than 250 employees to publish information about their parental leave and pay policies.

New clause 14—Entitlement to paternity leave—

“(1) The Employment Rights Act 1996 is amended as follows.

(2) In section 80A (entitlement to paternity leave: birth)—

(a) in subsection (3), for “two” substitute “six”,

(b) in subsection (4), for “56 days” substitute “52 weeks”.

(3) In section 80B (entitlement to paternity leave: adoption)—

(a) in subsection (3), for “two” substitute “six”

(b) in subsection (4), for “56 days” substitute “52 weeks”.”

This new clause sets out an entitlement to paternity leave.

New clause 15—Whistleblowers: protected disclosures—

“In Part X of the Employment Rights Act 1996, for section 103A, substitute—

“103A Protected disclosure

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or one of the reasons) for the dismissal is that the employee made a protected disclosure.””

This new clause would slightly extend the circumstances in which an employee is considered as unfairly dismissed after making a protected disclosure.

New clause 16—Adoption pay: self-employed persons—

“(1) Within six months of the passage of this Act, the Secretary of State must by regulations enable statutory adoption pay to be payable to persons who are—

(a) self-employed, or

(b) contractors.

(2) For the purposes of subsection (1), the meaning of “self-employed” and “contractors” shall be set out in regulations under this section.”

This new clause extends statutory adoption pay to the self-employed and contractors.

New clause 17—Meaning of “kinship care”—

“(1) This section defines “kinship care” for the purposes of sections 80EF to 80EI of the Employment Rights Act 1996 (inserted by section (Kinship care leave) of this Act).

(2) Kinship care describes an arrangement where a child is raised by a friend, relative or extended family member other than a parent.

(3) Subsections (4) to (9) set out the arrangements that are recognised as being types of kinship care.

(4) An arrangement where a child is adopted (within the meaning of Chapter 4 of the Adoption and Children Act 2002) by a friend, relative or extended family member (“kinship adoption”).

(5) An arrangement where—

(a) a child is looked after by a local authority (within the meaning of section 22 of the Children Act 1989), and

(b) a friend, relative or extended family member of that child is approved by the local authority to be a foster carer for that child (“kinship foster care”).

(6) An arrangement created by a special guardianship order pursuant to section 14A of the Children Act 1989 (“special guardianship”).

(7) An arrangement created by a child arrangements order pursuant to section 8 of the Children Act 1989 where the court orders that a child is to live predominantly with a friend, relative or extended family member of that child (“kinship child arrangement”).

(8) An arrangement where a child is fostered privately (within the meaning of section 66 of the Children Act 1989) by a friend or extended family member (“private fostering arrangement”).

(9) Any other arrangement where a child is cared for, and provided with accommodation in their own home—

(a) by a relative of the child, other than—

(i) a parent of the child; or

(ii) a person who is not a parent of the child but who has parental responsibility for the child; and

(b) where the arrangement has lasted, or is intended to last, for at least 28 days (“private family arrangement”).”

This new clause is subsequent to the new clause about kinship care leave.

New clause 18—Kinship care leave—

“(1) The Employment Rights Act 1996 is amended as follows.

(2) After section 80EE insert—