A recent report by the Recruitment and Employment Confederation (REC), suggests that the Agency Workers Regulations 2010 (that came into force in October last year) have resulted in a small reduction in the use of agency staff by employers. However Howes Percival solicitors point out that many employers still recognise the benefits a flexible workforce can offer them and agency workers remain crucial to many local businesses.
Natalie Howes, an Employment solicitor at Howes Percival's Leicester office comments: "The Regulations enhance agency workers’ rights by giving them the right to receive the same basic terms and conditions as comparable permanent employees after working 12 weeks in the same job for the same hirer. In addition agency workers have the same right to access the hirer's collective facilities (such as a workplace canteen) from day one of their assignment. In our experience, employers are looking to find ways to reduce the financial and administrative burden of the Regulations. Some employers are using alternative methods of recruitment such as the use of fixed-term contracts and recruiting permanent employees instead of agency workers. However many employers have instead retained their agency workers but granted them the same basic terms and conditions of employment as their permanent staff from day one. Given that under the Regulations calculation of the 12 week qualifying period is not straightforward and includes a number of exceptions where the 'clock' can be paused, such as break of less than 6 weeks between assignments, sickness absence and holidays, some employers have decided that granting agency workers the rights from day one will avoid confusion and reduce administration."
Natalie also notes that many agencies are being proactive in tackling the issues they face as a result of the Regulations, such as using the so-called ‘Swedish Derogation Model’. This is where an agency has a permanent contract of employment with the agency worker which entitles the employed agency worker to certain payments between assignments, but removes the agency workers right to receive 'equal pay' with a comparable permanent employee of the hirer after 12 weeks (although the agency worker retains the right to the same rest breaks and holidays as comparable permanent employees).Natalie comments that "Despite the Agency Workers Regulations becoming law 6 months ago we have not had to deal with any claims from agency workers which suggests that employers and agencies are working together to find solutions to the issues raised by the new law".