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Employers Guide to the Agency Workers Regulations

Do you use temporary agency workers? If so, you need to know about the Agency Workers Regulations, which came into force on 1 October 2011. This article explains the new law and what you need to do to prepare for it.

Background

The Agency Workers Regulations implement the EU Temporary Workers Directive, which aims to ensure that temporary workers have basic working and employment conditions no less favourable than if they had been recruited directly by hirers as permanent employees. The Directive also provides for equal access to facilities and the right to be informed about job opportunities. The Government has published guidance which you can access by clicking here: Agency Workers Regulations Guidance

The right to equal basic working and employment conditions

After a 12 week qualifying period, you must provide an agency worker with the same basic working and employment conditions as your permanent staff. This covers working time, rest periods, rest breaks, night work, holidays and pay. "Pay" includes basic pay, holiday pay, bonuses related to work done, overtime and luncheon vouchers. It does not include pension schemes, contractual notice pay, redundancy pay, expenses, benefits or sick pay.
The good news is that this right will not apply if the temp signs a permanent contract of employment with the agency and is paid between assignments, although the bad news is that this cost is likely to be passed on to you by the agency.

Rights for pregnant women

You will have to give pregnant agency workers paid time off for ante-natal care after 12 weeks in an assignment. They will also have the right to a health and safety assessment and will need to be moved to another assignment or be suspended on full pay if a risk is identified.

The 12 week qualifying period

The Agency Workers Regulations are not retrospective, which means that an agency worker who has already started an assignment on 1 October will not get credit for any previous service. The 12 weeks are continuous calendar weeks and there is no minimum number of hours each week. Maternity, paternity and adoption leave will count towards the 12 weeks; a break in the assignment of less than six weeks, jury service, sickness and holiday will not count but the 12 weeks will start to run again when the worker returns to work. A break of more than six weeks or moving to a substantively different role will mean that the 12 weeks start to run again from scratch.

If you attempt to avoid the qualifying period, you can be fined up to £5,000 and the agency worker will automatically receive equal treatment.

Access to facilities

From day one of an assignment you will have to give agency workers access to all shared facilities open to your permanent employees, such as canteens, crèches, gyms, transport services and staff car parks.

The right to know about permanent vacancies

From the start of an assignment an agency worker must be given information about any permanent vacancies you have, although you are not obliged to offer the job to the temp. You can give this information via a notice board, in-house newsletter or intranet.

Liability for a breach of the Agency Workers Regulations

Generally the hirer is liable under the Agency Workers Regulations and an agency will only be liable if it is responsible for the breach.

Preparing for the new law

If you intend to use agency temps after October 2011, you should take the following steps:

• review permanent employees' terms and conditions and consider how you will match them for agency workers
• if the cost is too high, consider whether you can reduce the terms for permanent staff but take legal advice before you do this, as there are risks involved
• discuss the implications of the Agency Workers Regulations with the agencies you use and agree how you will pass information to each other
• consider obtaining indemnities from agencies for any breaches by them of the Agency Workers Regulations
• ensure temps will be given information about permanent vacancies
• check that temps will have access to the facilities you offer to permanent employees.

Conclusion

A recent survey by the Recruitment & Employment Confederation showed that more than 80% of employers intend to maintain or increase their use of temporary labour in the next 12 months. If you plan to continue using temps, it is important that you are aware of your obligations and take action to ensure that you are prepared for the new law. Please contact us if you have any queries or need any assistance. We can advise you as to how the Agency Workers Regulations will impact on your business and the specific actions you need to take.

For employment law advise please contact our dedicated employment law solicitors on 08000 111 303 or alternatively please fill in the call back request form to the right of this screen.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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