The Agency Worker Regulations 2010 ("AWR") finally came into force on 1 October 2011.
The AWRs are legislation designed to protect temporary agency workers. They will get some rights (entitlement to access the hirer's facilities and to be provided with information on job vacancies) from the first day of an assignment.
After they have reached the qualifying period of 12 weeks on the same job , agency workers will be entitled to the same basic employment rights and working conditions as employees.
When do the AWRs have effect?
1 October 2011. The AWRs are not retrospective, so if you have temporary agency workers working for you, the 12 weeks started on 1 October, but you need to provide access to the facilities and information on vacancies from that date.
Whom do the AWRs affect?
The AWRs apply to
- temporary agency workers(TWs)
- organisations/individuals involved (directly or indirectly) in the provision of temporary agency workers (temporary work agencies, or TWAs),
- the organisations that use them (hirers).
What is a temporary agency worker ("TW")?
The key elements that make someone a TW are:
1. A contract between him and a temporary work agency (TWA);
2. He is supplied to an end user (the hirer) by the TWA; and
3. When on assignment he is supervised by and/or under the direction of the hirer; and
4. The worker is NOT in business on his own account e.g. they have no direct business relationship with the hirer. The hirer is not a client or a customer of the worker, but rather of the TWA.
On a strict interpretation of the legislation there is a risk that someone hiring out his services through his own limited company (which has no other personnel) thereby makes himself an agency worker of the end-user of his work. It was probably not the original intention of the legislation to achieve this and it may be possible to argue against it. However, it is always necessary to look at the whole history and reality of the relationship between the worker and the hirer.
What new rights do the AWRs give temporary agency workers?
From the start of an assignment, TWs have the same rights as a comparable employee to access “collective facilities and amenities” and to have access to information about vacancies. Examples of collective facilities are : canteens, childcare facilities, transport services. TWs must be told how to access job vacancy information.
TWs do not get preferential treatment - so, if there is a waiting list for a parking slot then a TW would have to join the queue. in very rare circumstances and for good reasons, it may be possible to justify not allowing TWs access to facilities. But, it is unlikely that Tribunals would consider cost alone to be a sufficient reason.
After the qualifying period of 12 weeks in the same job, the TW is entitled to the same “basic working and employment conditions of employment” as if employed by the hirer direct. These are; key aspects of pay, holidays, rest periods/ breaks, limits on working time (e.g. 48 hours a week), and paid time off for ante natal appointments for pregnant TWs. In particular, this covers comparable pay to that received by a comparable employee. If there is a qualifying period for regular employees to any entitlement , such as holiday benefits better than statutory rights, then that qualifying period applies to the TW.
Calculating the 12 week qualifying period
The basic rule is that the worker has to have been in the same job for 12 continuous calendar weeks. However, two periods of less than twelve weeks with a break between them may count as continuous if the same job is being done. Moving a worker to a different job may break continuity but there are rules that have to be followed to ensure that continuity between the two roles is broken, including making sure that the two jobs are “substantively” different . Care needs to be taken if continuity is to be broken.
Opting Out
There are prohibitions on contracting out. However, it should be remembered that these AWRs only apply to “temporary” workers, a term that is not defined. This may mean someone from an agency engaged for , say, over a year is outside the scope of the regulations – although may be within the scope of other protection. Also, if the TWA pays the TW at 50% rates in periods when the TW is not working for a hirer the protection relating to comparable pay arrangements does not apply.
Action
There is a helpful government website at: http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.
Employers would do well to check whether those who work with or for them are covered by the AWRs and how they will be affected by the new legislation.
If the AWRs are going to affect a business, it should check how and where to use TWs and whether any were already employed on the key date of 1 October 2011 so as to ensure that the requirements of the AWRs can be met.
A company’s systems and paperwork may need to be updated to reflect the new rules - for example, recording how long TWs have been engaged, the length of any absences and the reason for absences to know when they reach the 12 week qualifying period.
Contracts with your agency providers may well need to be reviewed - for example, an indemnity to cover a business if it runs into trouble with the AWRs.
