The Agency Workers Regulations 2010 outline a number of protections for agency workers within the UK.
The Department for Business, Innovation and Skills has now published guidance on the regulations. This covers, most notably
- the consequence of working via multiple agencies or companies
- who is covered by the regulations
- what is covered by the definition of pay and the calculation of the 12 week qualifying period.
The guidance will assist companies looking to take on agency workers, as well as the recruitment sector to understand their obligations.
The Regulations applied as of 1 October 2011. Agency workers are entitled to the same basic employment working conditions as if they had been recruited directly – following 12 weeks in the same job.
After 12 weeks agency workers should receive the same treatment in relation to pay and working conditions which include annual leave, rest breaks and incentives. It is a good idea for companies to provide agencies with up to date information in relation to their terms and conditions so that they can ensure workers hired through a temp agency receives equal treatment. That said, the responsibility lies with the company hiring and not the agency.
The first step would be to establish whether the worker comes under the regulations but, generally speaking, they would have a contract with the agency, not the company, but would work under the direction of the company. Time sheets would normally be provided to the agency who then pay the worker based on an hourly rate. It does not include workers who are in business on their own account.
Workers come under the regulations and are entitled to be treated no less favourably than a comparable worker or employee in relation to access to collective facilities and amenities. The wording is clear in that it does not intend to apply to all benefits – but those which amount to collective facilities to the company’s employees as a whole, such as staff work place facilities, canteens, transport services/allowances, common rooms, food and drinks machines etc.
The only excuse for a company not to apply this is if they can justify it objectively. Cost by itself is unlikely to be sufficient.
The regulations do draw a distinction between rights on joining, which include access to facility and amenities, plus employment vacancies and rights obtained after 12 weeks which include pay, duration of work and time for rest periods and annual leave.
It is important to establish the relationship from the start including all relevant information where possible. Failure to do so can lead to claims under Sections 17 & 18 which include compensation or declarations / recommendation by the Tribunal. Whilst the agency and the company can be jointly and severally liable for breaches to the extent that they are responsible, liability would normally fall on the company provided the agency has acted reasonably. If the agency can share and take all reasonable steps the company will be fully liable. If a worker believes the rights have been infringed they can make a written request to the agency for a statement providing information relating to the treatment. A response should be provided within 28 days.
Protection for employers
There are a number of steps companies can consider in order to protect their position, these include :-
- maintaining accurate records of agencies workers to ensure that qualifying periods are clear
- providing agencies with copies of standard terms and conditions, pay scales and annual leave entitlements
- Engaging workers on short term assignments (of no more than 12 weeks) and replacing them with alternate agency staff if required is another option
- Checking that all basic terms agency workers receive are in line with workers on permanent or equivalent roles
For help and assistance with relevant documents, procedures or specific questions on the Agency Regulations or employment law generally, get in touch.
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