Agency workers – things you should know

Drury have previously reported on this important law change and cannot reiterate enough that employers need to be aware of this legislation if you use agency workers, which no doubt a large number of our clients do.

Note: In reference to this legislation you would be referred to as the ‘Hirer’

What are the changes?

From 1st October 2011, organisations who use agency workers as an easy way to meet staffing levels and to save costs have to reconsider this as an option.

In effect the benefit to employers using agency workers is probably quite significantly reduced. As of October the Hirer has to start to treat them no differently than if they were their own employees, and Hirers have to allow agency workers access to terms and conditions of employment which they may not have wished to advertise or make well known.

Agency workers from day one of an assignment are now entitled to some equal basic employment conditions as your own employees, for example access to a canteen, child care facilities, company provided transport, etc.  From day one agency workers are also entitled to be informed about any permanent vacancies and it is the Hirer’s responsibility to ensure that the agency workers are notified of vacancies. Notice boards, intranet, etc. are good ways to ensure that all workers have access to the information.

In addition to rights from day one, once an agency worker has completed a 12 week qualifying period they are also entitled to the same basic working and employment conditions as the Hirer’s employees. Although not exhaustive, examples of these conditions are: pay, rest breaks, duration of working time and annual leave.

Hirers need to be aware that in order for an agency worker to meet the 12 week qualifying period the weeks do not have to be consecutive but can be cumulative. If there is a break of less than six weeks from one assignment with the hirer to a second assignment then the periods will link and be classed as cumulative.

Additionally Hirers should also be aware that the worker does not have to work a ‘full’ week for the assignment to be classed as one of the 12 required weeks.  Therefore only hiring the worker from Tuesday to Friday for example, is not a way around the regulations.  Any part of the week counts as a full week worked.

At present the Regulations exclude agency workers from any pension entitlements from the Hirer.  However, it should be noted that when the new pension rights start to be introduced from 2012 this will then apply to agency workers.

What do you need to do now?

The Regulations have been very carefully drafted and have in built ‘anti avoidance’ measures, in order to ensure there is no opportunity for Hirers to intentionally structure assignments to avoid the Regulations. The Regulations state that an agency worker will be treated as having completed the qualifying 12 week period, from the time at which they would have done if it were not for the structuring of the assignment if they have completed two or more assignments with the Hirer.

Therefore, Hirers are going to have to work closely with the Agency to ensure that they are not falling foul of these Regulations and it is the role of the Agency to ensure that they keep accurate records and are in a position to notify you when workers are at the qualifying period. Of course there could well be cost implications to the Agency to ensure the workers are given the same employment conditions as your employees and will no doubt be looking to you to pay or contribute towards these increased costs.

As always with new legislation the above is just an insight into the key points, however for more detailed information and guidance, do not hesitate to contact your Drury consultant.