Agency Workers:Establishing Equal Treatment

More extracts from the regulations I'm afraid. Under regulation 5(4) an employee is a comparable employee if , at the time a breach  of equal treatment  is alleged to have taken place:

"(a) Both workers are

(i) working for and under the supervision and direction of the hirer and

(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have similar level of qualifications and skills an

(b) the comparable employee works or is based at the same establishment as the agency worker or, where there is no comparable employee working or based at the establishment who satisfies the requirements of sub paragraph (a), works or is based at a different establishment and satisfies those requirements.

Therefore after completing the 12 week qualifying period, agency workers will be entitled to at least the basic working conditions they would have received "if they had been recruited directly by that undertaking to occupy the same job"

For that purpose, a comparison will be made with a comparable worker doing broadly similar work in the same organisation. It will look at employment contracts in use within the hirer's business, staff handbooks and any implied contract terms.

Here the government is relying on the Courts interpreting Article 3(1)f in this manner.

The comparator must exist. Historic comparators are disregarded but getting the documentation in good order well in advance is essential.