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Tips and Advice - Agency Workers Regulations

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The New Agency Workers Regulations 2010
Briefing Paper

Made: 20th January 2010
Laid Before Parliament 21st January 2010
Coming into Force 1st October 2011

Over the last year there have been many debates and consultations on the impact of the new regulations. The questions most organisations that work with temporary staff are concerned with are what effects the legislation will have on their business. The objective of this briefing paper is to outline the main areas of concern.

The Key Questions and Answers

• Who qualifies as an Agency Worker?
An individual is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer is protected under this Act. However, the authentically self-employed operating in business as a sole trader, self employed partnership or through limited liability are excluded from the legislation. The protection depends on whether the freelancer, contractor or consultant is genuinely self-employed. If they are not, they may be protected even if their contract is with your business and not with a temporary work agency.

• What is the meaning of “Equal Treatment”?
Once the regulations come into effect on 1st October 2011 a 12 week qualifying period will apply before most of the Regulations’ benefits accrue and thereafter, “Equal treatment” is limited to defined terms and conditions of work only. Although some new rights will be effective from day one. Equal treatment as regards to pay enables consideration of pay as a whole. The Regulations give agency workers the right to;

a. The same basic pay as permanent employees, including individual bonus schemes, contractual overtime pay and shift allowances, but excludes contractual sick pay, redundancy, pension or notice pay.
b. Comparable breaks, use of staff facilities and holiday allowances
c. Access to information about job vacancies
d. Access to staff canteens and childcare facilities which are available to permanent employees.
e. Access to fixed cash benefits, such as service charges, bonuses.

• Can agency workers contract out of the Regulations?
The Regulations impose obligations on temporary work (recruitment) agencies to ensure that agency workers receive equal treatment. It is expressly prohibited and the regulations provide for a fine of up to £5,000 for avoidance arrangements which are designed to prevent the 12 week qualifying period being met.

• Which rights have immediate effect?
The regulations require that the hirer must inform the agency workers of existing vacancies in their organisation. Hirers do not have to actively seek out each agency worker and tell them individually of the vacancies but they must ensure that they have the same access to information as permanent staff.

Agency workers will also be entitled to access collective on-site facilities such as crèche and childcare facilities, canteen facilities, car parking. However, access to facilities can be refused if there are objective grounds i.e. waiting list for space in the crèche or car park.

• Who Qualifies?
The agency worker has to accrue 12 calendar weeks’ service in the same role with the same hirer it is not dependant on which agency supplies the worker. If the agency worker falls ill or fails to complete a full 12 weeks for that reason, then the legislation provides a break between the assignment of 6 weeks or less that does not break continuity for qualification purposes. If the agency worker is required or absent for public duties, industrial action or annual leave then the leave over 6 weeks does not stop the qualification period it is in actual fact put on hold.

• How do I avoid Liability?
Initially the responsibility for ensuring equal treatment for the agency workers after 12 weeks lies with the agency. The regulations specifically provide for agencies to obtain (or take reasonable steps to obtain) relevant information from the hirer about the basic working and employment conditions they apply and details of any comparable employee.

Where the agency has done so and acted reasonably in setting appropriate conditions for agency workers, liability for breach will lie with the hirer. Liability in relation to access to facilities will be the sole responsibility of the hirer. There is no maximum limit to any compensation awarded to successful claimants but a minimum award of two weeks’ pay should normally be awarded in relation to a failure to provide equal terms and conditions.