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The Agency Workers
Regulations
The Agency Workers Regulations 2010 ('Regulations'),
which are due to come into force on 1 October 2011, provide
agency workers supplied by a temporary work agency ('Agency')
to work temporarily for a client of the Agency ('Hirer') access
to the same basic employment terms as if they had been recruited
directly by the Hirer.
Under the Regulations, the Hirer is obliged to
provide an agency worker with the same rights as a permanent
employee doing the same job, including:
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• access to childcare,
car parking and other on-site facilities from day one
of employment;
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• the right to
information about employment vacancies from day one of
employment; and
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• basic rights
such as rest breaks, working hours and pay (including
holiday pay, personal bonus or other payments directly
referable to the employment) after 12 weeks of employment
regardless of how many hours the worker does on a weekly
basis.
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For the purposes of calculating the 12-week qualifying
period, continuity will be broken by a break of more than 6
weeks between assignments in the same job or where the agency
worker takes a role that is substantially different from the
whole or main part of the duties in their previous role.
The Hirer is responsible for providing access
to the "day-one rights" from 1 October 2011 and should
determine the extent to which its agency workers may have access
to any enhanced rights after 12 weeks. Both the Hirer and the
Agency can be liable for failing to provide equal treatment;
the Hirer is deemed responsible if it fails to provide correct
or complete information about its agency workers to the Agency
and the Agency takes reasonable steps to provide equal treatment.
Remedies include compensation for the agency worker for loss
of earnings or an order for the Hirer to take steps to remedy
any unequal treatment. Anti-avoidance provisions mean that using
complex structures to attempt to circumvent the rules can also
result in a fine of up to £5,000.
To avoid liability, a business that frequently engages agency
workers should consider:
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• evaluating
the turnover of those workers, where they are assigned
and for how long, and whether they would fall within the
scope of the Regulations;
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• sharing information
with the Agency on the terms and conditions of its agency
workers and their comparators to determine what steps
may be required after 12 weeks; and
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• taking into
account, for budgetary purposes, discrepancies between
the rights of agency workers and their comparators; the
Hirer may be required to give agency workers enhanced
rights after 12 weeks.
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The changes may be welcomed in some quarters as
a step towards equal treatment for agency workers. However,
the advantages of a flexible workforce may be compromised as
employers are burdened by additional rules under the Regulations.
Rather than strengthening the rights of agency workers, the
Regulations may make their position more uncertain, provide
fewer opportunities to find temporary work or expose them to
early termination. Employers will be rightly concerned of the
additional costs involved with mirroring permanent employees'
pay and other terms. If you need any guidance on the Regulations,
please contact a member of the employment team.
Bob Cordran
MH Employment
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