The Government has just published its guidance on the Agency Workers Regulations which are due to come in to force on 1 October 2011. The intention of these Regulations is that, with some exceptions, Agency Workers will have the same basic rights to benefits as permanent employees.
What new entitlements will an agency worker receive?
From their first day of work, an agency worker will receive the same "access benefits" as a comparable permanent employee.
These would include:
- access to car parking, staff canteen and childcare facilities; and
- access to vacancies within the hirer.
After twelve calendar weeks of work with the hirer, an agency worker will be entitled to receive the same "relevant terms and conditions" as a comparable permanent employee. These would include:
- rest periods;
- annual leave; and
- paid time off for ante natal appointments.
Sharing of information
As an agency worker does not become an employee of the hirer, there is an interesting tripartite relationship between the worker, the agency and the hirer: the requirement to provide equal benefits to the agency worker lies with agency, but the knowledge of what the benefits actually are is with the hirer. To resolve this, new provision of information requirements will be placed on hirers.
After an agency worker completes 12 weeks in a given job, the hirer must provide the Temporary Worker Agency with the following information regarding comparable permanent employees:
- the level of basic pay;
- overtime or enhanced payments or allowances;
- types of bonus schemes that are operated and how the individual is appraised;
- whether vouchers with a monetary value are offered; and
- annual leave entitlement.
Liability for failing to comply with the Regulations
An agency worker can bring a claim for compensation to the Tribunal if they are not receiving their entitlement under the Regulations. The compensation would be equal to the losses that they have suffered because they did not receive the entitlement.
If an Agency Worker successfully brings a claim for failing to provide the benefits which are available from day one, the liability will be solely with the hirer.
If an Agency Worker successfully brings a claim for failing to provide the benefits to which they were entitled after twelve weeks' work, the liability will normally be with the Temporary Worker Agency, as long as the information set out above has been provided in full.
If the information has not been provided in full, a Judge can divide liability between the hirer and Temporary Worker Agency as he feels appropriate.
Preparing for the Regulations
Whilst the Regulations are still in a consultation period, it appears clear that the main thrust, as set out above, will come into force on 1 October. As such, we suggest that employers who use temporary workers begin to prepare now by:
ensuring contracts with Temporary Worker Agencies do not place liability to pay compensation on the hirer, if a Tribunal makes a finding against the agency
preparing "information packs" with the required information for areas of the business which frequently use agency workers so that these can be passed to the Temporary Worker Agency when needed;
considering whether agency workers are beneficial to the business or whether their roles would be better performed as permanent employees.
We will be offering training on the Regulations during the summer. Please contact us for more information.
What is an Agency Worker?
In order to qualify for protection under these Regulations, a worker will need to show that:
- there is a contract between the worker and a Temporary Work Agency;
- the worker is temporarily supplied to the hirer and works under the supervision of the hirer; and
- the worker is not self-employed.
This provides a wide definition for protection and, with limited exclusions, most agency workers will be covered.