Kate Russell explains how to treat short-term staff now the Agency Workers rules have given them more rights.
A piece of legislation likely to cause a substantial increase in the costs of long term users of temps is The Agency Workers Regulations. The Regulations came into force on 1st October, giving agency workers the same basic employment conditions after 12 weeks in a given job as if they had been employed directly by the end-user.
The rights fall into two categories. Day 1 rights for all agency workers apply from the first day of employment.These cover things like equal access to your facilities (such as kitchen facilities). You must also ensure that temps can access information on your job vacancies from the first day of their assignment.
The second category confers rights on workers who have spent 12 weeks in the same job. These workers will be entitled to equal treatment entitlements relating to pay and other basic working conditions, such as annual leave and rest breaks. To qualify the workers must spend 12 weeks in the same job with the same hirer. Pregnant agency workers who have completed the qualifying period will be able to take paid time off for ante-natal appointments during an assignment.
The Regulations apply to temporary agency workers; individuals or companies involved in the supply of temporary agency workers, either directly or indirectly, to work temporarily for and under the direction and supervision of a hirer; and hirers in the private, public and third sector. The agency worker does not need to be working for the agency itself; it is enough for the agency to supply the worker.
People who find work through a temporary work agency but are in business on their own account (where they have a business-to-business relationship with the hirer who is a client or customer), job seekers who find direct employment with a firm through an employment agency and individuals on secondment or loan from one organisation to another fall outside the protections of the Regulations.
The rights conferred by the Regulations are not retrospective. For those agency workers already on assignment, the 12-week qualifying period started on 1st October 2011. The right to equal treatment will not apply until an agency worker has worked in the same role for a hirer for 12 continuous weeks. A change of agency during the 12-week period will not affect a worker’s qualification. The qualifying period is triggered by working in the same job with the same hirer for 12 calendar weeks. A calendar week includes any period of seven days starting with the first day of an assignment, irrespective of how many hours the worker does on a weekly basis. A new qualifying period will only begin if the new assignment with the same hirer is substantively different and/or there has been a minimum of six weeks break between assignments. The general rule under the Regulations is that any break between assignments of six weeks or less, in the same role, shall not break ‘continuity’ for qualification purposes.
The Regulations provide for a number of circumstances in which breaks do not prevent agency workers from completing the qualifying period.
The most usual break in the qualifying period will be because an agency worker begins a new assignment with a new hirer, but this can also apply where an agency worker remains with the same hirer but is no longer in the same role. The qualifying period will also be broken where there is a break between assignments with the same hirer of more than six weeks, and the break is not one which ‘pauses’ the period.
An example of the type of break that will create a pause in the qualifying period would be a break of no more than six calendar weeks and the agency worker returns to the same role with the same hirer, or a break of up to 28 weeks because the agency worker is incapable of work because of sickness or injury.
The regulations also affect an agency worker’s pay. In order to meet the requirements, it is necessary for agencies and hirers to understand what agency workers would have received in terms of pay and basic working conditions if they had been recruited directly.
Some hirers are considering the use of the Swedish derogation (under which the hirer does not have to provide the same basic working and employment conditions if the agency has a contract of employment with the agency worker). This device means that the hirer does not have to bear the costs imposed by the Regulations. Instead, this would be the responsibility of the supplying agency. Amendments to the regulations mean that the requirement to pay the agency worker will only apply after the end of the first assignment.