Final guidance on the Agency Workers Regulations 2010 (the "Regulations") has been published by the government aimed at helping hirers and temporary work agencies interpret the Regulations and understand their respective responsibilities arising from the new provisions. Although the guidance is non-statutory and has no legal force, it is a useful tool for organisations affected by the changes, providing clarification of a number of complex provisions and helpful illustrative examples.

Key provisions of the Regulations

The Regulations are due to come into force on 1 October 2011 and will give temporary agency workers the right to the same basic working and employment conditions (such as pay, hours, overtime and annual leave) as if they had been recruited directly by the hirer.

In order to qualify for this entitlement, workers must have at least 12 continuous weeks' service in the same job. The Regulations are not retrospective and so the 12 week qualifying period will start on 1 October 2011 for all agency workers, including those already on assignment. The guidance considers some of the complexities regarding the 12 week qualifying period, including when the "qualifying clock" pauses or resets to zero.

In addition, from the first day of their assignment, all temporary agency workers will be entitled to equal access to information about job vacancies and collective facilities and amenities as permanent staff. The guidance sets out a non-exhaustive list of facilities including a canteen, crèche, transport services and car parking and considers when a "comparator" is appropriate and how one is identified.

What this means for temporary work agencies and hirers

Hirers of agency workers will need to provide the agency with up-to-date information about permanent employees' terms and conditions if any agency worker is likely to work on the assignment for 12 weeks or more so that the agency can ensure they receive equal treatment. Hirers will be responsible for ensuring that all agency workers receive job vacancy information and have access to facilities from the first day of their assignment.

Scope, exemptions and anti-avoidance

The guidance lists the individuals outside the scope of the Regulations. Those on secondment or on loan between organisations are likely to be out of scope because the main activity of the organisation seconding the individual is not the supply of temporary workers. However, group company arrangements where one entity employs temporary workers and places them into another entity (i.e. they have a contract with one company but work for another) are likely to be in scope.

The Regulations include an exemption from the equal treatment provisions on pay where the temporary agency worker is given a permanent contract of employment by the agency and paid between assignments (also known as "derogation contracts"). The rate of pay between assignments must be at least 50% of pay for the previous assignment (subject to national minimum wage). Where the exception applies, the agency worker will not be entitled to the same pay as if they had been recruited directly by the hirer after 12 consecutive weeks. The equal treatment provisions regarding all other terms and conditions will apply after 12 weeks.

The guidance notes that the Regulations do not prevent a hirer from deciding not to engage an agency worker beyond the 12 week qualifying period or from having a practice of hiring agency workers for 11 week assignments. However, the Regulations do include anti-avoidance provisions to deal with situations where the hirer is deliberately depriving an agency worker of their entitlements. The guidance illustrates this with an example of an agency worker who works consecutive assignments of 11 weeks for a hirer with six week breaks in between designed to prevent the agency worker from reaching the qualifying period.

Liability for breach

Agency workers may bring a complaint about an infringement of their rights under the Regulations in the employment tribunal. Liability rests with the hirer for failure to provide job vacancy information and access to facilities from the first day of the assignment. Both the hirer and agency can be liable for failing to provide equal working and employment conditions to the extent that each is actually responsible for the failure.

A link to the guidance can be found here:

www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-905-agency-workers-regulations-guidance.pdf