Commentary

(a) Rights in relation to basic working and employment conditions

Division AI Categories of Worker
| Commentary

(a) Rights in relation to basic working and employment conditions

| Commentary

(5)     The rights

(a)     Rights in relation to basic working and employment conditions

(i)     The right

The principal right in the Regulations is contained in SI 2010/93 reg 5(1) (see R [2418]) which provides that a qualifying agency worker is entitled to the same basic working and employment conditions as he or she would have been entitled to for doing the same job, had they been recruited (at the time that they were) by the hirer other than through an agency. Thus, in contrast to the Regulations on part-time and fixed-term working, there is no need for a comparator in the sense of a fellow worker; the 'comparison' is with himself or herself, had it been ordinary employment. However, there is one qualification to this. Although a comparator is not necessary, if there is such a comparable employee and the agency worker is working under the same terms and conditions as that person, reg 5(1) is deemed to be complied with; the comparator thus operates as in effect a defence for the hirer or agency (reg 5(3)). To be a comparable employee, that employee must work contemporaneously for the same hirer and be engaged on 'the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills' (reg 5(4), (5)).

Although reg 5(1) appears to talk in terms of working and employment conditions generally, it is a major feature of the Regulations that they in fact only apply to specific

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