Commercial team discussing issues Home | News & events | Legal updates | Equal treatment for agency workers: businesses need to start preparing for 2011 changes

Equal treatment for agency workers: businesses need to start preparing for 2011 changes

16 March 2010

From next year there will be important changes to the the rights of agency workers.

Although the Agency Workers Regulations 2010 (the Regulations) will not come into force until 1 October next year, agency workers’ new right to equal treatment will significantly affect agencies which provide temporary workers and those who hire them. Such organisations therefore need to start planning sooner rather than later for the changes.

Summary

The Regulations introduce a right for agency workers to be given the same basic working and employment conditions as if they had been recruited by the hirer (equal treatment). This right will only apply after 12 weeks in an assignment.

The Regulations do not change the employment status of agency workers so, for example, the Regulations will not mean they become entitled to rights which only apply to employees such as the right not to be unfairly dismissed or the right to a redundancy payment.

Liability for failure to provide equal treatment to agency workers will generally lie with the agency (not the hirer).

Why are the Regulations coming into force?

The Regulations are necessary to implement the European Temporary Agency Workers Directive in the UK.

To whom will the Regulations apply?

They will apply to individuals who are supplied by a temporary work agency to work under the supervision of a hirer. This will cover both those who are employees of an agency and those who are workers.

To whom will the Regulations not apply?

The Regulations will not apply to the genuinely self-employed, limited company contractors and those working on managed service contracts.

What rights will agency workers have?

After 12 calendar weeks in the same assignment an agency worker will be entitled to:

as if they had been recruited directly to do the job by the hirer (rather than being supplied through an agency).

Qualifying period

Agency workers will not be entitled to equal treatment unless they have been in the same role with the same hirer for 12 calendar weeks.  Time spent in an assignment before 1 October 2011 will not count.

Unless they are beginning a “substantially different” role with the hirer, an agency worker must cease working for the hirer in the same role for at least six weeks in order to break continuity. However, certain absences such as those by reason of maternity or paternity leave will continue to count towards the 12 week threshold. Sickness absence of up to 28 weeks will also not break continuity.

What does “basic working and employment conditions” mean?

This means contractual terms relating to:

What sort of payments are included within the definition of “pay”?

Pay means any sum paid in connection with employment including any fee, bonus, commission, holiday pay or voucher which can be exchanged for cash, goods or services.

Pay does not include terms relating to:

Are there any other entitlements agency workers will enjoy?

Yes, there are several other benefits which agency workers will be entitled to from day one of their assignment. These include no less favourable access to the hirer’s canteen facilities, childcare facilities and transport services. They will also have the right to be informed about vacancies with the hirer and must be given the same opportunity to find permanent work with the hirer as other employees. These rights will be directly enforceable against the hirer not the agency. 

Right to information

An agency worker will be able to ask their agency to provide them with certain information including the basic working and employment conditions at the hirer and the agency will have to provide that information within 28 days.

If the agency worker does not receive the information from their agency within 30 days they will be able to apply to the hirer for the same information.

What redress will an agency worker be entitled to if they have not received equal treatment?

An agency worker will be able to bring a claim in the employment tribunal. A tribunal will be able to make a declaration as to the rights of the agency worker and order unlimited compensation. However, this will not include any amount for injury to feelings but will be based on the loss attributable to the breach.

Generally an agency will be liable for any failure to provide equal treatment. However, it will have a defence where it can show that it took reasonable steps to obtain information from the hirer about its basic employment and working conditions and, that it acted upon any such information received. 

Employment tribunal will have the power to apportion liability between the agency and the hirer where appropriate.

Is there any way around the operation of the Regulations?

Agencies and hirers need to proceed with caution. The Regulations contain anti-avoidance provisions aimed at preventing assignments being structured so as to avoid the obligation to provide equal treatment.

An employment tribunal will be able to impose a penalty of up to £5000. This can be split between the parties based on who it is considered was responsible for the avoidance.

Action points for hirers

Carry out an “agency worker audit” and consider whether any agency workers are currently likely to be engaged for more than 12 weeks?

Where agency workers are likely to be used for a period of more than 12 weeks, consider what equal treatment will involve. This will require analysis of the following issues:

Following this analysis, the question of whether it will continue to be beneficial to use agency staff on long-term assignments may need to be addressed.  Think about whether there are any alternatives to agency workers that would work for you for example, setting up your own directly employed bank of zero hours workers. 

It will also be necessary to start collating information which will have to be given to the agency and dealing with issues such as who will be responsible for collating this internally and how and when it will be passed on to the agency and to any agency workers who request it.

Because the Regulations will require you to disclose details about your terms of employment consider whether you will require agencies to enter into a confidentiality agreement before disclosing such information. Also, consider the data protection implications of disclosing information to third parties, it may be necessary to anonymise this beforehand. 

Action points for agencies

Review terms of business with hirers and in particular consider:

© Shoosmiths. This page is for general information: it is not legal advice. Please read our full terms and conditions for details of the disclaimers and exclusions which apply.

Are any of the issues in this article giving you a headache? If so, we want to know

Name *

Comments*

The information you provide here will be used solely for the purposes of responding to your query for more information see our privacy policy.
 

Get in touch

Kevin McCavish

Partner
T: 03700 86 8802
I: +44 (0)118 965 8802
E: kevin.mccavish@shoosmiths.co.uk