The Agency Workers Regulations were published by the Government last month with the intention that they will come into force on 1st October 2011. Although the final outcome is dependent on the result of the forthcoming Election, the intention is that these will provide all Agency Workers with the right to equal treatment with their directly recruited colleagues after 12 weeks in a given job.
Who does this cover?
An agency worker, for the purposes of the Regulations, is an individual who is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer. It also includes those who operate through a chain of intermediaries or “umbrella” companies. This excludes individuals who are genuinely self-employed and operating on their own, through their own limited liability companies or those employed on managed service contracts.
What does it mean?
These regulations state that agency workers must be afforded the same basic working and employment conditions as they would have received if they had been directly recruited by the hirer as an employee or worker. This means:
• the duration of working time
• night work
• rest periods
• rest breaks
• annual leave.
Pay for the purposes of these regulations means any sums payable to a worker of the hirer in connection with the worker’s employment and therefore also includes any fee, bonus, commission, holiday pay or other payment related to employment. Certain payments, normally associated with employment, however are excluded. These are occupational sick pay, pension payments, maternity, paternity or adoption leave payments, redundancy pay and any bonus which is not directly attributable to the amount or quality of work done. It would also exclude any profit sharing and share ownership.
The Regulations provide that agency workers should be given the same entitlement to annual leave as a directly recruited colleague, including the right to time off for bank and public holidays. It will, however, be possible for the worker to be paid in lieu of any holiday above the statutory minimum.
In addition to basic employment conditions the agency worker, during their assignment, has the right to be informed of any relevant vacant posts with the hirer, to give them the same opportunity as a directly hired employee to employment within the organisation.
The agency worker will also be entitled to access to facilities such as the use of a canteen or childcare, although less favourable treatment on this basis can be justified on objective grounds (such as a waiting list for facilities) so long as the worker is placed on the waiting list etc.
Are you liable, as the hirer, or is the temporary work agency?
In the first instance the liability will rest with the temporary work agency. The agency must demonstrate that:
• It obtained or took reasonable steps to obtain relevant information from the hirer about the basic working conditions in force at the hirer;
• Where it received such information, it acted reasonably in determining the agency workers conditions; and
• Where it had responsibility for applying those basic working and employment conditions to the agency worker, it had ensured that agency worker had been treated accordingly.
If the temporary work agency has taken all these steps then the liability is likely to rest with the hirer.
What should you do to prepare?
While waiting for the Regulations to be implemented, employers should do the following:
1. Consider the use of agency workers within your organisation and assess how the Regulations will affect the pay and benefits to which they would be entitled.
2. Consider any further changes that will be required in relation to the other relevant working conditions of agency workers.
3. Consider record keeping processes and decide what information needs to be requested from the agency worker to support your policies.
4. Seek advice from an expert in this field to ensure that your policies and procedures support these changes.