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Legal Updates

Agency workers: The countdown begins

01 September 2011 #Employment


The Agency Workers Regulations 2010 come into force on 1 October. The Regulations will see a shift in the rights of agency workers or ‘temps`.  All those who use agency workers should be aware of these changes.

Scope of the Regulations

Agency workers will have 2 key rights under the Regulations.  These are being called "Day 1 Rights" and "Week 12 Rights". 

Day 1 Rights

The hirer will need to ensure that from the start of an assignment (day 1) all agency workers have access to:

  1. collective facilities and amenities, and
  2. information about job vacancies

in the same way as the hirer`s own employees.

Collective facilities and amenities

Agency workers will have the right to be treated no less favourably than the hirer`s own employees in accessing "collective facilities and amenities".  Collective facilities and amenities could include:

  • Canteen or other similar facilities.
  • Child-care facilities.
  • Transport services e.g. local pick up and drop offs, transport between site but not company car allowances or season ticket loans.
  • Toilet/shower facilities.
  • Staff common room.
  • Prayer room.
  • Food and drinks machines.
  • Car parking.

Access to employment vacancies

Agency workers will also have the right to be told of any vacancies in the hirer`s company during their assignment, and to be given the opportunity to apply.  Vacancies should be advertised in a place agency workers will both know of and be able to access.  An easy way is to advertise vacancies on a notice board, intranet, group email or staff newsletter, which is also sent to agency workers. 

Week 12 Rights

After 12 weeks the agency worker will be entitled to basic working and employment conditions, which are at least equal to those they would have received, if employed by the end-user.  Key terms are:

  • Pay - which includes basic pay, overtime, shift/unsocial hours allowances, bonuses/commission directly attributable to the work done by the individual and vouchers/stamps with a monetary value i.e. childcare vouchers
  • Duration of working time
  • Night work
  • Rest periods and breaks
  • Annual leave
  • There is also provision for paid time off for ante natal appointments for pregnant agency workers and for alternative work (or pay) to be provided where they are unable to continue with an assignment for health and safety reasons.

End-users will need to work with agencies to ensure that agency workers have these same basic rights.  Where there are just one or two agency workers in an organisation, the process will be relatively simple.  However, larger organisations that rely heavily on agency workers would be advised to spend some time considering this now to avoid claims later.  Buddy has an audit which can help with this. 

The "Qualifying Clock"

Particular rules apply to calculate the 12-week qualifying period.  There are times when the ‘clock` will either stop or continue even in periods where the agency worker is not at work, such as maternity leave. BIS Guidance on the Regulations explains these circumstances clearly as does the Buddy factsheet on Agency Workers. For agency workers already in post, the 12-week qualifying period does not begin to run until the Regulations come into force on 1 October 2011, so the first date for claims is Christmas Eve!  Merry Christmas!

Liability

If there are any claims, liability will be as follows:

  • Day 1 rights - Only the hirers would be responsible for any breach of these rights as these are not things that agencies control.
  • Week 12 rights - Liability could rest with either the hirer or the agency or both.  The agency will escape liability if it took ‘reasonable steps` to obtain information about basic working and employment conditions of employees (i.e. if it has obtained the information it needs to ensure that the pay/terms given to the agency workers is comparable to employed workers) and the hirer will be liable "to the extent it is responsible for the breach".

If complaints are upheld, the agency worker can be awarded compensation for loss of earnings related to entitlements, or appropriate compensation where access to a facility is denied.  There is no maximum award but there is a minimum award of two weeks` pay regardless of the value of the loss, unless the Tribunal finds that the agency worker behaved unreasonably.

A Couple of Points to Note

  • These Regulations apply to ‘temps` supplied by an agency to work temporarily for an end-user, not where staff are sourced via agencies but employed by end-users.
  • Anti-avoidance.  Trying to avoid the Regulations could have adverse consequences.  Any clever tricks (such as engaging the same worker for 11 weeks on, one week off in rotation) could lead to fines of up to £5,000.
  • The 12 week period attaches to the worker not the agency, so the 12 week clock cannot be avoided by keeping the same worker but changing the agency that supplies them.

Action Points

With the Regulations coming into force very soon, listed below are some points to have in mind to comply with the new requirements:

  1. End-users
  • Carry out an audit of agency staff engaged in the company, including what basic terms they receive and how these terms compare with equivalent employees.
  • Speak to your agencies - find out what pay and terms the agency worker actually receives so terms can be properly compared.
  • Provide agencies with relevant terms so that they can ensure that the agency staff receive at least equal treatment.
  • Establish a mechanism to keep track of agency workers so that the qualifying period can be calculated correctly.
  • Negotiate indemnities into your contracts with agencies to protect yourself if they fail to give the agency worker equal terms.
  • Contact Buddy contact@employmentbuddy.com if you have any concerns either in struggling to identify issues posed by the Regulations or to discuss creative solutions to any problems posed. 

2. Temporary Work Agencies

  • Set up internal systems to get relevant information from the end-user about the basic working and employment conditions of comparable directly recruited employees.
  • Where it is clear that an assignment will last for more than 12 weeks, request such information from a hirer at an early stage (possibly before the start of the assignment).
  • Set up reminders to check with hirers if there have been any changes to such relevant information that affect agency workers.
  • Where multiple temporary work agencies are involved in the supply of an agency worker, ensure that the agency with a direct contractual relationship with the hirer requests the relevant information and distributes it to the other agencies in the supply chain.
  • Include a contractual obligation in the supply terms with hirers requiring them to provide relevant information on an ongoing basis.

The Agency Worker Regulations appear daunting at first, but acting now to identify the issues and dealing with them before the Regulations are in force will avoid headaches and claims later. 

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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