The Agency Worker Regulations 2010 (the Regulations) will come into force on the 1st October 2011 and will have a significant impact on employers who regularly hire agency workers.
The Regulations do not alter the employment status of agency workers, but they do give agency workers the right to be treated the same as directly recruited employees in respect of:-
- Access to collective facilities and information on job vacancies – and
- Basic working and employment conditions
However there is an important distinction between these two rights. Whereas agency workers have the right to access collective facilities and information on job vacancies from day 1 of an assignment, equal basic working and employment conditions are only granted to agency workers who have completed 12 calendar weeks working in the same role for the same employer.
It is also important to note that the definition of an agency worker in the Regulations is wider than simply the traditional temp and includes those engaged via intermediary bodies such as those working through an umbrella company. If there is any doubt about whether a particular individual is covered by the Regulations, legal advice should be sought.
An agency worker's right to have equal access to the employer's collective facilities will include access to a work's canteen, a workplace crèche and a staff car park. However it is not 'enhanced' access and if there is a waiting list for employees to benefit from a workplace crèche, the right is simply for the agency worker to join that list.
The agency worker's right to receive information about relevant job vacancies with the employer is limited to access to that information. The employer can continue to require particular qualifications or experience for their vacancies.
The most significant right agency workers gain though is the right to the same basic working and employment conditions, because this includes the right to receive the same rate of pay as directly recruited staff. Therefore determining whether an agency worker has completed 12 weeks in the same role for the same hirer will be crucial. Employers should be aware that some events 'break' continuity; when the agency worker begins a new assignment with a new employer; when the agency worker remains with the employer but is moved to a new role which is 'substantially different' to their previous one and in certain circumstances, where there is a break between assignments which is for more than 6 weeks. In those cases the agency worker has to begin to accrue their 12 weeks again from scratch. However some absences do not break continuity but instead merely suspend it, meaning the agency worker gets to 'keep' any weeks already worked and can add to them on their return. These include breaks of less than 6 weeks, sickness absence of up to 28 weeks and annual leave. Absences due to pregnancy, childbirth or family leave are effectively ignored and the agency worker continues to accrue continuous service throughout their absence.
If an agency worker does accrue 12 weeks continuous service working for the same employer in the same role, they will be entitled from week 13 onwards to the same pay as directly recruited employees performing the same work. 'Pay' includes not only basic pay, but also overtime, shift allowances, holiday pay and any bonuses directly linked to the individual performance of the agency worker. However agency workers have no entitlement to receive occupational sick pay, occupational maternity/paternity/adoption pay, redundancy pay, notice pay or bonuses not linked to the contribution or performance of the individual agency worker. The agency worker will also become entitled to the same contractual holiday entitlement and rest breaks (e.g. a lunch hour) as directly recruited staff.
Employers who use agency workers should therefore consider:-
- Amending any relevant policies and notifying any relevant staff that agency workers now have equal access to onsite collective facilities.
- Providing agency workers with information about your collective facilities as part of their induction.
- Ensuring agency workers know where and how to access information on job vacancies e.g. posted on a staff notice board.
- Assessing the number of agency worker assignments which will or are likely to last 12 weeks or more.
- Ensuring the agency is provided with up to date details of your directly recruited staff's terms and conditions of employment.
- Whether to reduce the number of agencies who supply you with agency workers in order to reduce the administrative burden.