The new rights of Agency Workers
Is your business ready?

Updated July 2011

Key points

• The Agency Workers Regulations 2010 will come into force on 1 October 2011.
• The regulations apply to 'agency workers' who are supplied by a temporary work agency to work on a temporary basis for the hirer and who have a contract of employment with the agency. The regulations do not apply to self-employed contractors.
• The regulations give agency workers certain new rights to equalise treatment between agency workers and the hirer's own employees doing the same or broadly similar work.
• Hirers and agencies will be responsible for ensuring the regulations are adhered to – non-compliance can lead to a claim against either or both the hirer and the agency.

Day One rights

From the first day of their assignment agency workers should be afforded access to facilities that are available to permanent employees (e.g. crèche and parking) and access to details of job vacancies with the hirer.

Liability for any failure to provide 'Day One' rights lies with the hirer.

Week 12 rights

The regulations give new rights to agency workers after they have completed a 12 week qualifying period. Agency workers will be entitled to the same basic working and employment conditions as if they had been employed directly. Relevant conditions will include:

• Salary, overtime and shift allowance;
• Rest breaks and holiday entitlement;
• Bonuses linked to individual performance (this is not a right to all bonuses paid to employees – e.g. a bonus based on overall company performance to encourage loyalty and long term service will not apply to an agency worker);
• Vouchers/stamps with a monetary value (such as lunch/transport vouchers);

In addition, agency workers who are pregnant will be entitled to paid time off for ante-natal appointments.

Comparable employee

The agency worker will be able to compare themselves with an employee at the hirer's business who is doing the same or broadly similar work (taking into account whether they have a similar level of skills and qualifications). Where there is no comparator based at the same site or office as the agency worker, but there is someone in the same or similar role at another site, the agency worker may be able to rely on that person as a comparator.

The 12 Week Qualifying Period

• The qualifying period is not retrospective: an agency worker will only start accruing the 12 week qualifying period from 1 October 2011, even if their assignment started before then.
• Continuity of the 12 week qualifying period will only be broken by a gap of six calendar weeks or more during or between assignments in the same job, or by a change in job to a new role that is "substantially different" from the previous role.
• Some absences will only suspend continuity and the agency worker will be able to count the weeks they have accrued prior to the absence towards the qualifying period. These include a period of sickness of up to 28 weeks, jury service of up to 28 weeks and annual leave.
• The position is different for maternity, paternity and adoption leave. In these circumstances the worker will enter a 'protected period' in which continuity continues to accrue towards the 12 week qualifying period.
• 'Sham' arrangements that are structured to avoid an agency worker obtaining the 12 week qualifying period can attract a £5,000 fine.
• Liability for "Week 12" rights lies primarily with the employment agency. However, the agency worker can make a claim against both the hirer and the employment agency, particularly where there is uncertainty as to whether the hirer has provided the necessary information about pay and conditions to the agency.

Who falls outside the scope of the regulations?

• Individuals working on Managed Service Contracts where the worker does not work under the direction and supervision of the hirer.
• Individuals working for an in-house temporary staffing bank. This would apply if your business employed temporary workers directly to carry out work solely for you.
• Individuals who find direct employment with your business through an employment agency.

Action Points

In preparation for the implementation of the regulations we recommend that you consider the following steps:

• Assess what categories of temporary staff you currently have and determine whether they qualify as agency workers under the regulations.
• Evaluate whether it is necessary to engage agency workers for periods of 12 weeks or more. Where workers are engaged for short intermittent assignments, assess whether any workers will nevertheless qualify for "week 12" rights because of the continuity provisions in the regulations which allow workers to build up to 12 weeks if they are employed after less than a six week gap.
• Calculate the potential financial exposure of agencies who currently supply you with workers. Is the pay that your agency workers receive in respect of their roles more or less than that of a comparable employee (remember that the comparable employee could be at another site)?
• Commence a dialogue with the agencies you work with to set mechanisms in place to ensure compliance with the regulations by both parties.
• Consider what systems you will put in place to ensure that you provide the agency with up to date terms and conditions of the equivalent/comparable employee role so that the agency can ensure that its agency workers receive equal treatment.
• Look out for agencies inserting new indemnities in their commercial agreements with you, placing the onus on you to be responsible for any breach of the regulations. If you can, consider inserting indemnities to protect your business by placing liability for breach on the agency. 

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