With the Agency Workers Regulations in their infancy, we still await the tribunal cases that will address the significant number of unknowns. One area in which the Association of Recruitment Consultancies has pushed for clarification from the department of Business Innovation and Skills is Regulation 10, the ‘Swedish Derogation’.
Specifically, under what conditions could a temporary work agency terminate the contract of employment of one of its R.10 employees without being bound to make the ‘payments between assignments’ to that worker? What could be the position if the employee goes ‘absent without leave’? Can the employing agency consider the worker’s failure to report for work as amounting to the worker’s resignation, and if so, how long must the worker be absent for the termination to be considered reasonable?
Until recently the precedent case law was based upon cases dating up to forty years which proposed two alternative conclusions:
• An employee’s behaviour could effectively terminate a contract of employment so that there was no dismissal by the employer under s.95(1)(a) Employment Rights Act 1996 (Harrison v George Wimpey and Co Ltd ).
• Termination of a contract by the employee must be accepted by the employer, so effectively the contract is terminated by the employer (London Transport Executive v Clarke ).
In the recent Employment Appeal Tribunal case of Zulhayir v JJ Food Service Ltd the idea that there could be ‘implied termination’ and ‘self-dismissal’ was rejected, the panel finding that the employee’s repudiatory conduct alone is not enough to terminate a contract. There must also be acceptance of that conduct by the employer.
In the light of this judgment, those using an R.10 AWR (Swedish Derogation) contract should not seek to justify withholding or refusing ‘payments between assignments’ (as required by R.10) on the basis that an employee has been deemed to have resigned due to being effectively AWOL.
For more advice on the Swedish Derogation contact Lawspeed on 01273 236 236.