The Agency Workers Regulations 2010 (‘The Regulations’) came into effect on 1 October 2011. The Regulations could be viewed as a reaction to the changing nature of the employment of agency workers. Historically, employers hired agency workers to undertake specific pieces of work on a temporary basis. However, increasingly agency workers are engaged on an open ended basis and hired instead of permanent full time staff due to the flexibility of the arrangement.
These new Regulations will have a dramatic impact on the relationship between agency workers, agencies and hirers.
The regulations introduce new rights for agency workers, including:
From day 1 of the assignment to an employer:
- Equal access to collective facilities and amenities at work such as a canteen, childcare facility, car park and use of transport services; and
- The right to receive information about employment vacancies.
After completion of a 12 week qualifying period:
- The right to the same pay (including holiday pay, commission and bonus related to individual productivity and overtime) as equivalent permanent staff (in a same or similar role).
- The provision of basic working and employment conditions as equivalent permanent staff (in a same or similar role).
- Potential protection against discrimation under the Equality Act 2010
Although the Regulations increase the legal protections afforded to agency workers, limitations will still apply and these include that they will not be entitled to occupational sick pay, redundancy pay, occupational pension schemes and health insurance.
What does this mean to you?
If you employ agency workers and wish to avoid liability for breach of the Regulations we would recommend that you take the following steps:
- Consider the work undertaken by agency workers and whether there is an employee in a same or similar role (if there is no comparable employee there may not be any entitlement to equal treatment).
- Review the basic terms of employment of agency workers and compare them to the terms of permanent employees in a same or similar role.
- Provide recruitment agencies with key information about current employees in the same or similar role to that intended for the agency worker including employment terms, holiday entitlements, overtime and working conditions.
- Provide agency workers with information about your collective facilities as part of an induction pack.
- Be aware of how the qualifying period is calculated and put in place systems to determine the 12 week qualifying period for each agency worker.
There are complex rules about calculating the qualifying period and the types of absence that affect the qualifying period. To avoid liability we would suggest that you seek legal advice to help clarify your duties as an employer under the Regulations and put in place mechanisms to mitigate the impact of the Regulations.
For further information or advice please contact our employment law teams: Bromley Office 0208 464 4242 or London Office 0207 242 7265 or email employmentlaw@wellerslawgroup.com
