Dear Aunty

I know the Agency Worker Regulations are coming into force soon but I haven’t had a chance to find out what they are all about.  Please can you give me a quick bullet point guide which I can share with my team and the managers in our business so we are all up to speed on the basics?

Yours
Bea Reddy


Dear Bea
Here is a bullet point guide to the Agency Worker Regulations.

OVERVIEW

  • In force from 1 October 2011.
  • Temps have the right to be treated the same as directly hired employees, in certain respects.

WHO IS COVERED?

  • Temps employed by agencies and placed on assignment to hirers.
  • Temps contracted via intermediaries (but not those working under managed service contracts or the self-employed).

WHAT RIGHTS DO THEY HAVE?

  • Day 1 rights:  Rights to information about permanent employment opportunities and access to the same on-site facilities and amenities as comparable directly recruited staff.
  • Rights after 12 weeks: Rights to some of the same key terms “ordinarily included” in contracts of comparable staff (including terms implied through custom and practice or incorporated via contractual handbooks or collective agreements): pay, length of working time, rest periods, rest breaks, annual leave, paid time off for ante-natal appointments.
  • No right to: provision of private healthcare, contractual notice period.

WHAT DOES “PAY” INCLUDE?

  • Basic pay, holiday pay, overtime, shift allowances, bonuses for individual performance (including commission and other formula-based bonuses).

WHAT DOES “PAY” NOT INCLUDE?

  • Occupational sick pay, pension payments, notice pay, bonuses not due to individual performance, payments to reward loyalty or long term service, redundancy pay, maternity pay, paternity pay, adoption pay, long term incentive or profit-sharing schemes.

HOW ARE THE 12 WEEKS CALCULATED?

  • Time runs continuously if temp works in same role for same hirer without a break.
  • Clock is reset by breaks of at least 6 weeks, a new assignment with a new hirer or a substantively different role with the same hirer.
  • Clock is paused by breaks of less than 6 weeks, annual leave, sickness absence of up to 28 weeks and jury service of up to 28 weeks.
  • Clock continues to run during maternity, paternity and adoption leave

WHO CAN THE TEMP COMPARE THEMSELVES TO?

  • Someone working under supervision and direction of hirer, doing broadly similar work, with similar qualifications and skills.  Comparison with a hypothetical comparator may be possible.

WHAT IS THE COST OF AVOIDANCE?

  • Up to £5,000 penalty per claim of deliberate avoidance measures to “reset the clock”.

WHO IS LIABLE FOR GETTING IT WRONG?

  • Day 1 rights:  hirer liable for any infringement.
  • Week 12 rights:  agencies primarily liable but defence available.
  • Employment Tribunal will apportion liability on extent to which agency or hirer is responsible.PRACTICAL CONSIDERATIONS
  • If you hire temps:
    • Provide agency with up to date information on terms and conditions.
    •  Ensure that temps can access facilities from day 1 of assignment.
  • If you are an agency:
    • Ask hirers for information about pay and basic work conditions.
    • Ensure temps treated as if they had been directly recruited.
    • Check regularly for any changes to terms and conditions.
  • It is in the interests of all parties to exchange information in a timely and efficient manner.
  • If it is obvious that an assignment will last longer than 12 weeks then exchange information at early stage.

POSSIBLE COMMERCIAL CONSIDERATIONS

  • The use of temps may become less attractive and companies may chose to hire more staff directly.
  • “Temp-to-perm” fees may become more of an issue given the increased chance of temps being taken on as permanent as a result of being told about permanent vacancies.
  • Agencies may agree to indemnify their more important clients from liabilities under the Regulations in order to ensure that clients continue to demand temps from them.

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