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Your responsibilities to agency workers

The Agency Workers Regulations 2010 came into force on 1st October 2011, entitling agency workers to the same basic employment and working conditions as your existing employees/workers.

Day 1 rights for all agency workers

If you hire agency workers then from their first day of work with you, you must provide them with access to the same facilities as comparable employees/workers. This may include:-

  • a canteen or other similar facilities
  • a workplace crèche
  • transport services
  • toilet/shower facilities
  • staff common room
  • mother and baby room
  • prayer room
  • food/drinks machines
  • car parking

This list is not exhaustive and will include any other such facilities that you offer to comparable employees/workers.

Now, you may be asking, what is a comparable employee? In short, this is any current employee/worker doing the same or broadly similar work to the agency worker and working at the same location, or if there is no comparable employee at the same location, at another location that you operate.

In addition to providing agency workers with the same facilities as comparable employees, you must also provide them with information about any relevant job vacancies.

Your job vacancies may be listed on a notice board, the internet, or by some other means, this is fine so long as your agency workers know where to look.

12 week rights for all agency workers

After an agency worker has been with your business for 12 weeks they will be entitled to equal treatment in relation to pay and other basic working conditions. This includes:-

  • working hours
  • night work
  • rest periods
  • rest breaks
  • annual leave

In addition, if you hire any agency workers who are pregnant, they will be entitled to paid leave for ante natal appointments.

Again, this list is not exhaustive, but covers some of the main contractual terms that will be covered.

The 12 week clock will start ticking from the moment the agency worker starts work with you, and will continue to run as long as they remain in the same job within your business, regardless of the number of hours they work per week.

Arguably, the most difficult provision to deal with is the entitlement to equal pay. For example, you may have a number of employees working in comparable roles, all with different rates of pay, perhaps varying from £8-£11 per hour. It would clearly not be acceptable, after the 12 week qualifying period, to pay an agency worker £6 per hour, as this is not equal to other comparable employees. However, if you were to pay him or her £8 per hour, on the basis that this is the rate you would pay to employees of comparable experience, this would be acceptable.

You should keep in mind that pay does not simply mean the hourly rate, but may also include overtime payments, unsocial hour allowances, payment for annual leave, performance based bonuses and commission etc.

The Department for Business Innovation and Skills has produced a detailed guidance note on the changes, which you can access by following the link below:-

http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf

Article written by Luke Hewitt – Trainee Solicitor

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