From 1st October 2011 the Agency workers Regulations come into effect

On 1 October 2011, The Agency Worker Regulations 2010 are due to come into effect.  The aim of the Regulations is to fundamentally alter the position of temporary agency workers by giving them limited entitlement to equal treatment (with permanent employees) after they have completed a qualifying period.  The Regulations will apply to employment businesses, commonly known as “temp agencies” that introduce temporary staff to hirers.  It will not apply to employment agencies that look for permanent employment for individuals. 

For the purposes of the Regulations, an agency worker is defined as a person who is “supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer”.  That individual has a contract with the agency and is not in business on his or her own account.  However, the Regulations will catch some of the more complex arrangements that operate in the recruitment industry, such as situations where an agency worker is contracted to an umbrella company but finds work through a temporary work agency. 

Generally speaking, the people who are covered by the Agency Worker’s Regulations are:-

(1) temporary work agencies involved in the supply of temporary agency workers to a hirer either directly or through an intermediary,

(2) an agency worker who has a contract with the temporary work agency and is not in business for themselves but works temporarily for and under the direction and supervision of the hirer and

(3) that the hirer is a company, partnership, sole trader or public sector body which is involved in economic activity and which obtains temporary agency workers through a temporary work agency.

If your activity is covered by the Regulations you need to understand what the changes will bring about.

The aim of the Regulations is to improve the working conditions of agency workers by giving them the right to be treated in the same way as permanent employees and workers of the hirer.

To qualify, the agency worker has to complete a qualifying period in a given role.  Regulation 7(2) provides that the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks during one or more assignment.  A week will count as a calendar week if the worker works for any part of it.  The agency worker must work in the same role for the same hirer for the duration of the qualifying period.

If the agency worker completes a qualifying period in a given role then in addition to the existing entitlements and protections (such as the existing right not to be discriminated against and the right to the national minimum wage and so on) the agency worker will acquire entitlements in respect of basic working and employment conditions which relate to pay, duration of working time, night work, rest periods, rest breaks and annual leave.  The right to equal treatment will only extend to the terms and conditions that would ordinarily be included in the agency worker’s contract if he or she had been recruited to a permanent post directly by the hirer.

The guidance to the Regulations gives some practical examples of the right to equal treatment.  As an example; if a hirer has a pay structure, then after completion of the qualifying period in a given role, the agency worker would be entitled to pay at the appropriate grade for his or her experience, not for example, the starter grade.

As an alternative example; if a hirer has a number of permanent staff who are paid £10 per hour and takes on agency workers with comparable skill to do essentially the same task, then after the qualifying period the agency worker would be entitled to the same rate of pay.  Furthermore, once the agency worker has qualified for equal treatment, he or she must be given the benefit of any improvements to the terms and conditions that are made such as loyalty type increases in annual leave or incremental pay rises.

For more information about The Agency Worker Regulations 2010 please contact Anna Illingworth at Rowberry Morris (anna.Illingworth@rowberrymorris.co.uk, telephone 0118 951 6629)