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Comparative employee and Swedish Derogation

The Comparative employee

The regulations aim to ensure an agency worker is engaged on the same relevant terms and conditions as a "comparable employee". In other words, "what terms and conditions would the agency worker have got if they had been directly recruited into the role?"

An employee is a 'comparable employee' if at the time of an alleged breach of the regulations:

  • both employee and agency worker are working for and under the supervision and direction of the hirer
  • both employee and agency worker are engaged in the same or broadly similar work (this could include an examination of qualification and skills)
  • the employee works or is based at the same establishment as the agency worker (the employee can work or be based at a different establishment but only where such an employee cannot be found working or based at the same establishment).

The Agency Workers Directive came into force on 1 October 2011 and the main principle of the directive is to give equal treatment to someone who has been with the hirer for 12 continuous weeks in a given job. The agency worker will be entitled to at least the basic working and employment conditions such as pay and working time which are equal to the hirer's own employees.

The Swedish Derogation or pay between assignments exemption

This is when a Temporary Work Agency can offer an agency worker a permanent contract of employment and pay the agency worker between assignments. It would mean that after 12 weeks with a hirer the agency worker will not be entitled to the same pay as if they had been recruited directly. The agency worker who is covered by this exemption will still be entitled to other new provisions under the regulations, for example annual leave after 12 weeks, rest breaks etc.

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