Agency workers directive: The key issues
James Wilders, July 01, 2011
Temps from employment agencies will soon be given the same rights as permanent staff. The Agency Workers Regulations 2010 come into force on 1 October this year, so any employers using agency temps, even if only for seasonal work, will need to factor these new rights into their workforce planning.
But research by Randstad shows 37% of employers are completely unaware of the new regulations and the implications for their business.
The Regulations apply to agency temps, defined as a person "supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer". They don't cover the self-employed, in-house temporary staffing banks, managed service contracts, or those on secondment.
Under the new Regulations, agency workers will be entitled to certain rights from their very first day on an assignment. This will extend to the same basic terms and conditions as permanent staff after a 12 week period. These conditions will include pay, hours and annual leave.
From day one, agency workers must be allowed to access the hirer's collective facilities and amenities such as a staff canteen, crèche and car parking: but this will be subject to the same qualifying conditions as apply to permanent staff. The Regulations do not apply to company car allowances or other benefits.
Agency workers must also be informed of any relevant job vacancies with the hirer from day one to ensure they have the same opportunities for progression as permanent staff.
After working in the same role for the same hirer for twelve weeks, agency workers will be entitled to the same basic conditions as they would have had, had they been directly recruited by the hirer. This is not as straight forward as it sounds but the Government has published guidance on the Regulations to help companies understand the Regulations and their responsibilities as an employer.
After twelve weeks, agency workers will have the right to paid time off for ante-natal care. They are also entitled to be offered alternative work whilst pregnant should they have to be suspended because of a risk to their health. If no alternative work exists, they must then be paid by the temping agency until the end of the assignment.
Twelve weeks in, agency workers will be entitled to the same pay as permanent staff. This includes: basic pay, overtime, shift allowances, risk payments for hazardous duties and holiday pay (including enhanced entitlement). Bonuses or commission attributable to personal performance and additional discretionary payments are also included. However, company sick pay, redundancy pay, pensions, private health insurance and benefits in kind such as those provided through salary sacrifice schemes are all excluded (but with the exception of luncheon vouchers).
Bonuses or incentive payments not directly attributable to the amount or quality of the work done (such as to encourage loyalty or reward long term service) by a worker are all excluded from pay. The calculation of bonuses is likely to prove time consuming and problematic, particularly where payments combine a mixture of individual and company performance. Whilst the BIS guidance provides employers with some help with this contentious issue, ultimately the final interpretation will be decided in time by Employment Tribunals. However, by being aware of these changes the likelihood of being involved in one of these costly and time-consuming Tribunals is very much reduced.
James Wilders is an employment partner at solicitors Dickinson Dees.