If you use Temporary Workers, you will need to prepare for the Agency Workers Regulations which come into force from 1st October 2011. The Regulations are based around equalisation of pay and rights between agency workers and permanent workers. Some of the rights given to Agency workers will exist from the first day of the assignment, others are subject to a 12 week qualifying period. Please see the summary below of the key points.

Rights From First Day of Assignment

Agency Workers will be entitled to equal access to facilities such as canteens, childcare facilities, transport services and car parking from day one of their assignment. They will also have the right to be provided with information about any job vacancies within your organisation. Hirers are solely responsible for any breaches relating to “day 1 rights”.

ACTION- Information regarding vacancies should be made available to all workers through intranet or via a notice board in a communal area. Agency workers will need to be told where and how to access this information. Employers should ensure their Agency Workers have access to such facilities from no later than 1st October 2011 onwards and that they have been told about any notice boards or given any intranet access as appropriate for vacancies.

Employers will need to consider what collective facilities and amenities they currently offer and consider whether any changes are needed to in order to give equal access to agency workers. Employers should note that he right for agency workers is that of equal access so if for example there is a waiting list for a crèche, agency workers should be offered the chance to join the waiting list, not given preferential treatment.

Rights After The Qualifying Period of 12 Weeks

After completion of a 12 week qualifying period (regardless of working pattern), an Agency Worker will be entitled to the same basic terms and conditions (see below) of employment as if they had been employed directly after 12 weeks in the same role “12 week rights”. This is not retrospective so your agency worker will not start the qualifying period until 1st October 2011. There are certain events which may break or pause the continuity of the qualifying period. For example, where the Agency Worker’s begins performing a “substantively different role” the qualifying period clock will reset to zero. Employers must, however, be mindful of the anti avoidance provisions outlined below.

As the agency will be responsible for setting the agency worker’s terms and conditions the agency will be liable for any breach in relation to “12 week rights” to the extent that they are responsible. However, if the hirer provides the agency with incorrect information or fails to notify the agency of any change to pay or working condition term the liability will transfer from the agency to the hirer.

The basic terms and conditions which must be equalised between employee and temp are:

• Pay - The Regulations’ definition of “pay” covers Commission, Holiday Pay, overtime, Salary/wages, shift allowances and vouchers/stamps (if they meet certain conditions. “Pay” does not include benefits in kind, company car, percentage discounts, occupational sick pay, occupational maternity pay, notice and notice pay, pensions and share option schemes.
• The Duration of Working Time
• Night Work
• Rest Periods and Rest Breaks
• Annual Leave
• Incentives and Bonuses - Due to the huge variety of incentive and bonus arrangements this is likely to present one of the most difficult areas of interpretation within the Regulations and the definition of “pay”.

In broad terms, incentives which are directly attributable to the amount or quality of work done by the agency worker must be matched by the hirer e.g. individual performance related bonuses. Incentives that are not directly attributable to the quality or quantity of work done or which consist of a distribution of share of profits e.g. company performance, do not need to be matched. Hirers should be aware that if there is a scheme which rewards mixed performance e.g. both personal and company performance the personal element may need to be identified and matched.

Anti Avoidance

The Regulations contain provisions to prevent Hirers trying to get around the Regulations, for example by rotating agency workers between different assignments for periods of 11 weeks. These provisions give an agency worker the right to be treated as if they have met the 12 week qualifying period if it can be shown that a hirer and /or agency have used a pattern of assignments to deprive an agency worker of their rights. Under the measures the Employment Tribunal may make an additional award to the worker of up to £5,000.

Remedies for Breach

An Agency worker can complain to the Employment Tribunal if they feel they have been deprived of either day 1 or 12 week rights. The Tribunal can award compensation in respect of a breach and any loss suffered or they can make a declaration as to the agency worker’s rights.

ACTION- Hirers should audit the terms and conditions offered to permanent employees who are carrying out work which might also be undertaken by temporary workers to ensure they are aware of what additional rights will need to be provided to temps. Hirers may wish to consider whether benefits could be reduced now to reduce the cost or whether qualifying periods could be introduced for new employees before they acquire certain benefits. Note there are legal pitfalls associated with changing terms of employment, and legal advice should be sought.

Hirers should understand their reasons for using agency staff. Are they used to save on overtime costs? or is the business simply under-resourced?

Hirers may wish to consider whether other employment relationships may be appropriate where agency staff are currently used e.g.

• Maternity cover-fixed term contract
• Sickness and holiday cover-casual workers pool
• Ad Hoc Need-Increased overtime
• The needs of the individual hirer will dictate what arrangement suits best but hirers should be aware that legal protections in alternative arrangements may be more onerous than under the Agency Workers Regulations.

In advance of October 2011, hirers should exchange relevant information with their preferred supplier agencies. Hirers may wish to put in place information exchange systems to ensure Agencies are being provided with the correct information prior to agency staff being engaged.

With the British Chamber of Commerce estimating the cost of the Agency Workers Regulations to be £1.5 billion per year this is clearly a very important issue for businesses who employ temps. Guidance on the regulations has now been published by the Department for Business Innovation & Skills.

www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf

Debenhams Ottaway can carry out Audits of all your Employment documentation and procedures to ensure compliance with current laws and best practice. We offer businesses a free review of contracts and policies as part of the Employer Support Service which fully protects your business against the financial exposure of an employment dispute for an agreed monthly fee. Click here for further details.

For further advice and information, please contact Louise Attrup on 01727 735 663 or via email on la@dolegal.co.uk