Esther Martin of CM Murray LLP, provides an insight into the new Agency Worker Regulations which finally came into effect in October 2011
The Agency Workers Regulations 2010: Practical tips on how your organisation should respond
More than a year since they were first published, the Agency Workers Regulations 2010 finally came into effect on 1 October 2011.
These Regulations implement European legislation regarding equal treatment for certain workers supplied by a temporary work agency, who are now entitled to at least the same basic working and employment terms and conditions to which they would have been entitled had they been hired directly by an organisation (the 'hirer').
Many such rights are applicable only after completion of a 12 week qualifying period in the same role (whether on one or more assignments), subject to allowances for breaks. Specific anti-avoidance provisions seek to prevent steps designed to stop agency workers acquiring equal treatment rights.
However some rights apply from the first day of an agency worker’s assignment and it is the hirer’s responsibility to ensure these are in place.
Day 1 Rights
A hirer must ensure that all agency workers are treated no less favourably than a comparable employee or worker in being given access to certain collective facilities and amenities (such as a crèche, staff canteen or prayer room).
The agency worker must also be given equal access to employment vacancies so that they receive the same opportunity to find permanent employment with the hirer.
Week 12 Rights
Once the relevant 12 week qualifying period has been completed, agency workers are entitled to the same "basic working and employment conditions" that they would have been entitled to had they been recruited directly by the hirer. These include:
- Basic pay and performance-related bonuses (though not certain other forms of bonus such as profit-sharing or share participation);
- Holiday and overtime pay; and
- Shift allowances and premiums for unsocial hours or dangerous duties.
Pregnant and breast-feeding mothers will also have increased rights.
However, this equal treatment principle does not extend to occupational sick pay or maternity pay, nor to notice pay, amongst other exceptions.
Swedish Derogation Model
The Regulations also allow for a specific exemption in relation to pay where an agency worker enters into an employment contract with the temporary work agency, containing specific terms, including in relation to minimum hours of work and payment in between assignments. See our latest blog post for a further discussion of this so-called "Swedish Derogation Model".
Guidance for hirers and some practical tips
If your business hires or is likely to hire agency workers, you should be aware of the new rules and familiarise yourself with the Agency Workers Regulations Guidance published by the Department for Business, Innovation & Skills in May 2011. For example, if new policies haven’t already been implemented, consider the following:
- Appoint an individual to be responsible for tracking the weeks worked by agency workers and whether/when they will need to be provided with the appropriate benefits;
- Identify whether or not any agency workers fall within the ambit of the Regulations;
- Determine who has particular responsibilities within the tripartite hirer/agency/worker relationship;
- Be clear about length of assignment from the start and include an end date in any contract. Is the assignment going to exceed 12 weeks?;
- Assess which communal benefits will need to be provided from day 1;
- At week 12, determine what additional benefits need to be provided to the agency worker;
- Put in place specific HR processes for agency workers;
- Consider performance bonuses and procedures in place for awarding such bonuses; and
- Train managers on the effect of the new Regulations.
For further information please contact Esther Martin at Esther.Martin@cm-murray.com