Welcome to the October issue of our Employment Bulletin. This issue covers the new employment rights for agency workers from the 1 October 2011. If you would like to discuss any of the issues covered in this bulletin, please get in touch with a member of our team.
Agency Workers to get new rights from 1 October
From 1 October 2011 agency workers will be entitled to new employment rights under the Agency Workers Regulations 2010. The purpose of the Regulations is to provide temporary agency workers with equal treatment in terms of basic working and employment conditions as if they had been employed directly by the Company to do the same job.
Equal treatment under the Agency Workers Regulations 2010 relates to basic working and employment conditions such as:
- Pay
- Working Hours
- Overtime
- Breaks/Rest Periods
- Holidays
- Access to Collective Facilities such as Childcare Facilities
The entitlement to equal treatment will not include:
- Pension Provisions
- Occupational Sick Pay
- Redundancy and Notice Pay
- Company Share Schemes
- Bonuses and Benefits intended to reward loyalty or long service
- Staff Discount Schemes
- Maternity, Paternity or Adoption Pay above the statutory minimum
New Entitlements
When on an assignment, agency workers will get some of the rights to equal treatment from day one and some of the rights after they have completed a 12 week qualifying period in the same job with the same hirer. A break of at least 6 weeks between assignments restarts the qualification clock with the clock being paused during holiday and sickness absences.
Day 1 rights for all agency workers include:
Access to collective facilities and amenities provided by the hirer such as:
- Access to a canteen or similar facilities
- Transport services
- Staff common room
- Car parking (may be subject to certain restrictions which apply to comparable employees or workers)
- Access to a workplace crèche (may be subject to a waiting list – same as for comparable employees or workers)
- Waiting room
- Access to information on job vacancies
Rights for Agency Workers employed after a period of 12 weeks* include:
- Pay
- Working Hours
- Overtime
- Rest Breaks
- Holidays
- Paid time off for Ante-natal appointments
What this means for you?
If you Hire Agency Workers
If you are an Employer and you hire temporary agency workers through an agency, you should provide your agency with up-to-date information on your terms and conditions so that they can ensure that an agency worker receives correct equal treatment as if they had been recruited by you directly, after 12 weeks in the same job. You are responsible for ensuring that all agency workers can access your facilities and are able to view information on your job vacancies from the first day of their assignment with you.
If you are an Agency Worker
From 1 October 2011, after you have worked in the same job for 12 weeks, you will qualify for equal treatment in respect of pay and basic working conditions. These weeks can be accumulated even if you only work a few hours per week.
If you are a Temporary Work Agency
If you are involved in the supply of temporary agency workers, you require to ask the hirer for information about pay and basic working conditions (once it is clear that the agency worker will be in the same job with the same hirer for more than 12 weeks) to ensure that they are treated as if they had been directly recruited for the job. You should take into account the fact that agency workers will have an entitlement to equal treatment in the charges you make to the end user.
Complaints about Unequal Treatment
After their qualifying period, an agency worker has the right to request from their agency details of how their pay and conditions have been determined. If the agency does not respond within 28 days, the worker can go to the hirer for the same information. If the worker believes they have not received their entitlement, they can make a claim through the Employment Tribunal system, usually within 3 months of the assignment.
The claim may be made against the agency, the hirer or any other parties in the chain who might be responsible for the detriment (e.g. an umbrella company) or against all the parties involved.
Who is Liable?
The Employment Tribunal will assign the liability to whoever they believe has caused the disadvantage to the worker. If the agency can show they have made all reasonable efforts to establish and apply equal treatment then the liability will lie with the hirer or any other relevant party. Failure to provide the day 1 entitlements lies solely with the hirer.
What are the Penalties?
The immediate award will be to make up the difference in earnings with a minimum level of 2 weeks’ wages however failure to comply with the Agency Workers Regulations 2010 can result in penalties of up to £5,000 per incident.
Lindsays’ employment team can offer advice on all aspects of employment law. If you would like to discuss any of the issues raised in this Bulletin please get in touch.
This newsletter has been issued by Lindsays on the basis of publicly available information, internally developed data and other sources. Whilst all reasonable care has been taken to ensure the facts stated and the opinions given are correct, Lindsays does not accept any responsibility for its content and advise that specific advice should be sought regarding the topics covered.
© Lindsays 2012
