The Agency Workers’ Regulations are due to come into force from 1 October 2011 and will affect all businesses using agency workers.
The first trick is, of course, to identify and recognise who or what is an “agency worker”. An agency worker is defined as one who is supplied to work temporarily under the control or supervision of the hirer (that could be your organisation). This includes those working through umbrella or personal service companies, but does not include the genuinely self employed or those working on managed service contracts.
The background is that there was concern that some agency workers had long term, stable relationships with businesses (the hirer) and that it was unjust for the agency worker to be denied some of the rights enjoyed by employees.
The Agency Worker Regulations seek to rectify this and some key points to note are:
- From day one, the hirer must give agency workers access to the same facilities and amenities as employees doing the same job. This includes such things as crèches, canteen and car parking, but does not include benefits in kind such as membership to a gym.
- From day one, the hirer must also give agency workers information about job vacancies within the organisation on the same basis as employees doing the same job.
- After an agency worker has been with the hirer for 12 weeks, the agency worker is entitled, generally, to the same pay and basic working conditions as employees of the hirer who are doing the same job. This is the principle of “equal treatment”.
- “Pay” in this context includes such items as basic pay and overtime but excludes, for example, occupational sick pay. “Pay” includes and excludes some very specific elements and you should take advice to ensure you are aware of the extent and cover of the Regulations.
- The agency is responsible for providing the worker with these equivalent payments, but the hirer must give the agency the correct and relevant information (about pay and conditions of its employees) to ensure compliance. If you, the hirer, do not provide this relevant information, you are liable for the breach.
- A claim for breach of the Regulations can be taken to the Employment Tribunal with the potential for compensation and penalties being awarded.
In the run up to 1 October 2011, it is essential that you look at your business and consider the impact that these Regulations could have in respect of the long terms costs of agency workers. If you are in doubt as to the status of your “staff”, the impact of the Regulations on your business and your obligations under the Regulations, we would be happy to discuss this with you before the 1 October commencement date. Act now!
Contact:
Douglas Strang