The Agency Workers Regulations 2010 (the Regulations) came into force on 1 October 2011. We have set out below some key Q&As.
What are Temporary Work Agencies, Hirers and Agency Workers?
A Temporary Work Agency (TWA) is an employment business which supplies workers to organisations (the Hirer) to carry out temporary work.
A Hirer is an individual or organisation to whom workers are supplied to work temporarily for, and under the supervision and direction of, that individual or organisation.
An Agency Worker is a person who is supplied by a Temporary Work Agency to work temporarily for, and under the supervision and direction of, the Hirer.
Does this mean agency workers are entitled to the same rights as employees?
Not exactly. Agency Workers now have access to a Hirer’s collective facilities and amenities, and access to information about job vacancies, from the first day of their assignment.
In addition to this, once the Agency Worker has completed 12 weeks on an assignment, they are entitled to the same basic working and employment conditions which they would have been entitled to had they been directly recruited by the Hirer rather than via an agency.
What does collective facilities and amenities mean?
An Agency Worker has the right not to be treated less favourably than permanent staff in relation to collective facilities and amenities from day one of their assignment. Collective facilities and amenities include a canteen or other similar facilities, child care facilities and the provision of transport services. However, this list is not exhaustive and could include toilets or shower facilities, a common room or a waiting room. A non-exhaustive list can be found in the BIS guidance.
Does it matter how Agency Workers are made aware of vacancies?
Hirers must make Agency Workers aware of vacancies from day one of the assignment. An organisation must generally announce (in a suitable place in the establishment) any vacancies. This could mean, for example, putting up a notice on a staff notice board that permanent staff and Agency Workers alike have access to, or sending an email to staff (as long as the email is also sent to the Agency Workers and they can access the email).
What are basic working and employment conditions?
After completion of the 12 week qualifying period an Agency Worker will be entitled to basic working and employment conditions as if they had been recruited direct by the Hirer.
Basic working and employment conditions are, broadly speaking, the relevant terms and conditions that a Hirer would put in their contracts of employment for permanent staff. The relevant terms and conditions relate to pay; duration of working time; nightwork; rest periods; rest breaks and annual leave.
Does this mean that an employer has to pay agency workers the same as permanent employees?
After 12 continuous calendar weeks, a Hirer must pay Agency Workers “basic pay” which is based on the annual salary an Agency Worker would have received if they had been recruited directly by the Hirer.
There are a number of exclusions from pay. Agency Workers are not entitled to occupational sick pay, occupational pensions (although this will change once the provisions of the Pensions Act 2008 come into force) or maternity/paternity and adoption pay. It is recommended that employers take legal advice on a specific issue relating to pay or check the BIS guidance and Regulations for the full list of exclusions from pay.
Can an employer terminate the Agency Worker’s contract before the end of the 12 week period and re-engage at a later date?
The Regulations introduce a number of specific anti-avoidance provisions. The Hirer or TWA are prevented from putting in place measures which are intended to prevent an Agency Worker from obtaining equal rights to a permanent employee. Factors which may be taken into account are the length of assignment, the number of assignments with a Hirer and the length of any break between assignments with the same Hirer.
Tribunals may make an additional award of up to £5,000 against the Hirer or TWA if it is found that this provision has been breached.
The BIS Guidance can be accessed here: www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf