The Agency Workers Regulations will come into force on 1 October 2011 and there has been much debate about their anticipated consequences on the UK recruitment agency market (which employs an estimated 1.3 to 1.5 million agency workers at any one time and has an annual turnover of around £29.3 billion) as well as on employers who routinely make use of agency workers. In this edition we explore the changes to be implemented by the regulations and their potential impact.
Who do the regulations apply to?
The regulations will apply to agency workers that have been supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer and have a contract of employment with the temporary work agency, or any other contract to perform work or services personally for the agency.
This definition of an agency worker is surprisingly narrow as many agency workers will not have a contract of employment to perform work for the agency itself, but will instead have a contract with the agency to perform work and services for the hirer (or end user). It is thought that excluding such workers cannot have been the intention of the Government and it remains to be seen whether, despite its indication that it will not amend the Regulations before they come into force, the Government will address this issue.
The right to equal treatment
The Regulations grant agency workers the right to be treated, in respect of certain conditions, as if they had been recruited by the hirer. Compliance with this right by the hirer will only be deemed to have occurred if the hirer can identify an actual comparator who is working under the same relevant terms and conditions as the agency worker and show that those terms and conditions are ordinarily included in comparators' contracts. The comparison must be made with a comparable employee or worker doing broadly similar work in the same organisation.
Agency workers will be entitled to equal treatment in respect of "basic working and employment conditions" which will include the following:
- duration of working time
- length of night work
- rest periods
- rest breaks
- annual leave
12 week qualifying period
The right to equal treatment will only apply once the agency worker has worked in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments. Any week during the whole or part of which an agency worker is engaged on an assignment will be counted as a calendar week.
The continuity of the 12 week qualifying period will be broken if the agency worker begins a new assignment with the same hirer (whether through the same or a different temporary work agency) where the work or duties that make up the whole or the main part of that new role are substantively different from the work or duties that made up the whole or main part of their previous role. However, it is important to note that unless the agency provides a written description of the new work the agency worker will be required to undertake, there will be a presumption that the worker is working the same role.
Continuity will also be broken where there is a break of at least 6 calendar weeks either during or between assignments. Where there is a break of less than 6 calendar weeks, continuity is merely suspended.
The existence of the qualifying period complicates the Regulations and gives rise to the possibility of widespread avoidance by employers e.g. by using 11 week assignments. The Regulations therefore include a number of anti-avoidance provisions which attempt to combat situations where employers attempt to avoid the effect of the Regulations either by putting the agency worker in a new role or by deliberately inserting breaks during what would otherwise be the qualifying period.
Access to employment, facilities and training
From the start of their assignment, an agency worker should be given the same opportunity as a comparable worker to find permanent employment with the hirer. They will therefore have the right to be told of any vacancies within the hirer during their assignment.
The agency worker will also have the right, from the start of their assignment to be treated no less favourably than a comparable worker in the hirer's establishment in relation to collective facilities such as the staff canteen, child care or transport facilities.
Enforcement and remedies
The Regulations provide for the agency worker to bring a number of claims in the Employment Tribunal for breach of the Regulations within three months from the date of the infringement or detriment (subject to a Tribunal's ability to accept a claim out of time where it is just and equitable to do so).
Any compensation ordered to be payable by an agency or hirer will be a just and equitable amount according to the worker's level of responsibility, taking into account the nature of the breach, any financial loss suffered by the worker and any expenses reasonably incurred as a result..
Once the Regulations come into force, the position of agency workers will be greatly improved. However, there is some concern that the Regulations may make using agency workers a much less attractive proposition for employers, particularly for small business.