In a development which may have connotations for firms in the retail motor industry, regulations were brought into force on 1st October 2011 which provide agency workers with increased employment rights.

The objective of the Agency Workers Regulations 2010 is to give agency workers the entitlement to the same basic employment and working conditions as a company’s permanent employees.

Who do the regulations apply to?

The Regulations apply to agency workers who are assigned to do temporary work for a company through temporary work agencies, they do not apply to recruitment consultancies that place individuals into permanent roles.

What rights apply from day one of an assignment?

  1. Access to collective facilities

From 1 October 2011, all agency workers have had the right to be treated no less favourably than comparable permanent employees or workers in relation to ‘collective facilities and amenities’, unless the less favourable treatment can be objectively justified.

Collective facilities could include:

  • Canteen or other similar facilities
  • Childcare facilities
  • Transport services
  • Toilet or shower facilities
  • Staff common room
  • Food and drinks machines
  • Car parking

The concept of collective facilities does not extend to any off site facilities or benefits in kind which are not provided by the company, such as subsidised access to an off site gym.

The right is to equal, not better, treatment. Agency workers should not therefore be given enhanced access rights when compared with permanent employees. For example, if there is a waiting list for access to childcare facilities an agency worker will be entitled to join the list but not to jump the queue.

  1. Access to employment vacancies

From the start of their assignment, agency workers have the right to be told of any permanent vacancies of the company in order to be given the same opportunity as a comparable permanent employee to apply.

The company can inform the agency worker ‘by a general announcement in a suitable place in the hirer’s establishment’. A suitable place may be a notice board or on the company’s intranet. They must be informed as to where to find the information, which could be explained during a worker’s induction.

This provision does not curtail an employer’s freedom as to how to treat applications for jobs. Agency workers do not need to be given preferential treatment when compared with other internal candidates or external candidates when deciding who is the best person for the role.

Which rights apply after a qualifying period?

  1. The right to equal treatment regarding terms and conditions

The right to equal treatment with regard to basic working and employment conditions does not apply until the agency worker has completed a qualifying period of 12 weeks.

Provided that an agency worker has worked in the same role, whether on one or more assignments, with the same company for 12 continuous weeks, they will be entitled to receive the same basic working and employment conditions as are ordinarily offered to permanent employees in relation to:

  1. pay;
  2. duration of working time;
  3. night work;
  4. rest periods;
  5. rest breaks; and
  6. annual leave.

If there is a break of over 6 weeks between assignments, continuity will be broken and the agency worker will have to start counting the 12 weeks again before they are entitled to the right to equal treatment regarding terms and conditions.

Specific provision is also made in the regulations in relation to pregnant and nursing mothers who must be provided with paid time off for antenatal appointments, to be paid by the temporary work agency.

Anti-avoidance provisions

The Regulations contain specific anti-avoidance provisions to prevent temporary work agencies and hirers from structuring assignments to prevent the worker from acquiring equal rights.

A prohibited structure of assignments can occur when an agency worker has:

  • completed two or more assignments with the hirer; or
  • completed at least one assignment with the hirer and one or more earlier assignments with hirers connected to their current hirer; or
  • worked in more than two roles during an assignment with the same hirer and on at least two occasions has worked in a role that was not the ‘same role’ as the previous role.

The anti avoidance provisions will then kick in if the most likely explanation for the above scenario is that the hirer or temporary work agency intended to prevent the agency worker from being entitled to the right to equal treatment.

To decide whether there has been such a structure of assignments, the following factors will be taken into account by the Tribunal:

  • Length of the assignments;
  • Number of assignments with the hirer or any connected hirer;
  • Number of times the agency worker has worked in a new role with the hirer; and
  • The period of any break between assignments with the hirer or any connected hirer.

Tribunals can make an additional award of compensation of up to £5,000 where a hirer and/or agency are found to have breached the anti avoidance provisions.

Derogations from the equal treatment principle

(Swedish derogation agreement)

In limited circumstances a contract may be entered into between an agency and an agency worker where it is agreed that the right to equal treatment with regards to pay (only) will not apply.

However, this regulation only applies where:

  • the agency worker has a permanent contract of employment with the agency; and
  • the contract was entered into before the first assignment started; and
  • in periods between assignments the agency pays the worker a minimum of 50% of their basic pay while on assignment, and this must not be less than the national minimum wage.

It is unusual for an agency worker to be permanently employed by an agency and to receive pay between assignments, and this is therefore likely to be rarely used.

Compensation

The compensation payable by an agency or hirer for breach of the Agency Workers Regulations 2010 is that which is ‘just and equitable’ having regard to the extent of their responsibility. The legislation states that the minimum amount awarded must be two weeks’ pay but there is no statutory cap on the maximum amount that can be awarded.

Complying with the regulations

Now that the Agency Workers Regulations are in force it will be important to consider, as soon as possible, the measures you will take to comply with, or avoid the Regulations.

You may wish to put in place a record keeping system to ensure that agency workers do not work beyond the 12 week qualifying period, for example.

It will also be important to keep in regular contact with any agencies that you use for the provision of temporary workers and ensure they are kept aware of your current standard terms and conditions.