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Employees: Agency workers

What rights do the Agency Worker Regulations coming on to effect on the 1st October 2011 confer?

New and potentially costly regulations, which you need to know about if you ever use temporary agency workers, come into force on the 1st October 2011:

 

Day 1 rights for all agency workers
If you use agency workers, you must ensure that they can access your facilities (such as canteen, childcare, etc) and information on your job vacancies from the first day of their assignment. This does not mean that you have to employ them directly. However if you want to employ them directly, make sure you read the small print of your agreement with the agency first; you may be liable to charges if you do.

 

After 12 weeks
After 12 weeks in the same job agency workers have the right to equal treatment with permanent staff on pay and other basic working conditions. No period prior to 1st October 2011 counts towards the 12 weeks. This means that the employer may have to pay the agency worker the same hourly rate as permanent staff, even though the employer has to pay agency fees on top. ‘Pay’ includes basic pay, overtime payments, shift allowances, holiday pay and bonuses. In addition, pregnant agency workers who have completed the 12 week qualifying period will be entitled to paid time off for ante natal appointments. What’s not included: The regulations do not however cover the genuinely self-employed, bonuses for loyalty or long service, occupational pensions or sick pay and financial participation schemes.

 

How can employers avoid equal pay after 12 weeks?
The bad news for the agency workers is that these regulations will encourage employers to simply get rid of them and replace them with someone else after 12 weeks’ service. Other employers will attempt to carefully prepare job descriptions for the temporary positions so that they are substantially different from any permanent roles, enabling them to pay less. It appears however that having a break in service (ie sending the agency worker away for a week and then re-engaging them) will only suspend and will not break the qualifying service.

 

Getting it wrong
It’s not just down to the agencies to ensure compliance. Breach of the Agency Workers Regulations could potentially result in a claim against the employer, who might be liable to a ‘fine’ of £5,000 per worker in the Employment Tribunal. If for example you breach the regulations with ten workers, this could theoretically cost you £50,000. If a temporary worker asserts rights under the regulations and is dismissed as a result, he or she may be able to claim automatic unfair dismissal (for which one years service is not required)

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