partner feature
New agency regulations
The Agency Workers Regulations will come into force on October 1, 2011. The object of the Regulations is to provide rights to agency workers...
T
here are two distinct rights: day 1 rights which apply at the commencement of the
assignment with the hirer (the customer of the Agency) and additional rights after a 12 week qualifying period to the same basic working employment conditions as those staff employed by the hirer doing the same job.
Day 1 Rights At commencement of the assignment agency workers are entitled to: be informed of any relevant vacancies within the hirer’s organisation
to receive equal treatment to comparable workers of the hirer in relation to collective facilities and amenities, for example, canteens, creches, common rooms, toilets and parking. Agency workers do not have the right to jump the queue if there is a waiting list for facilities. To mitigate against breaches of Day 1 Rights, hirers are well advised to ensure they have in place systems providing agency workers with access to vacancies, for example, equal access to intranet, notice board or circulated emails; identifying
what, if any, collective facilities are available and how these can be extended to agency workers. Hirers are predominantly responsible for breaches of the Day 1 Rights.
Week 12 Rights Once agency workers have completed a 12-week qualifying period, they are entitled to the same basic working and employment conditions to comparable workers. This covers: pay working hours, including night work, rest periods and breaks annual leave The test of equal treatment is to determine what would the hirer have paid if the agency worker had been employed directly, taking into account individuals’ qualification, skills and experience. However, excluded from pay calculations are benefits such as occupational sick pay, pensions, enhanced maternity pay, loss of employment compensation, redundancy payments, benefits in kind and vouchers. Conversely to Day 1 Rights,
agencies are primarily liable for any breaches of the Week 12 Rights (this reflects that agencies set the terms and conditions of agency workers). The hirer can be responsible if
it supplies incorrect information about its terms and conditions of employment to the agency, or fails to provide such information when requested. Therefore, prudent businesses should ensure that they clearly communicate
12 THEbusiness QUARTER
information about their terms and conditions of employment of their permanent staff to agencies.
Conclusion Agency workers provide many businesses with a means of managing peaks and troughs in production. For many employers, agency
workers provide a flexible means of meeting labour requirements and it is, perhaps, inevitable that the new regulations may lead to some increased costs to businesses, which businesses will need to take into account when engaging agency workers for longer assignments. Businesses which ignore the regulations run the risk of fines for non- compliance as well as individual claims to the Employment Tribunals. This may mean that employers consider alternate means of cover, for example, greater use of casual workers and temporary workers or increased overtime.
Dan Wilde is a Partner at HardingEvans Solicitors and Head of the Employment Department. If you regularly use agency workers and require advice on how to adapt to the new legislation please contact Dan on 01633 760662 or email
wilded@hevans.com
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