The recent implementation of the Agency Worker Regulations (AWR) has dramatically changed how businesses can deal with agency staff. However, there has been little coverage of the rights and responsibilities that exist with regard to agency workers from day one and with nearly a quarter of businesses taking on seasonal workers over the Christmas and New Year period, many businesses could be caught out.
The AWR state that agency workers who have been working for the same organisation for 12 weeks or more are entitled to the same basic employment conditions as employees working in the same role. The AWR came into effect on 1 October 2011 and with the 12-week period following that date coming to a close during the festive season, many businesses are still uncertain as to how they should handle the new regulations.
HR managers certainly have their hands full at this time of the year, but I urge them not to let the AWR fall to the bottom of the pile.
I don't think that there will be a flood of AWR-related employment tribunal claims straight away. However, once agency workers become more familiar with the regulations and the rights they are entitled to, I expect that more and more of them will bring claims against businesses that are either ignorant of the AWR or that try to get round them. Businesses therefore need to make sure that they are fully up to speed now with what the law requires them to do.
Temporary workers are vital to the economy, in order to maintain service levels during busy periods – and recent reports highlight a strong demand for agency workers. However, businesses do need to make sure that they protect themselves against possible claims. Agency workers have certain rights from the minute they are taken on, such as the right to be allowed access to any communal facilities provided for employees, including canteens and childcare. Businesses have to allow that access from the outset, unless they have very good justification for not doing so.
It is also important for businesses to remember that with regard to discrimination claims the situation is the same for agency workers as it is for employees. Businesses are liable for any unlawful discrimination carried out to or by their agency workers and this applies from day one of the agency's worker's engagement. There is no limit on the amount of compensation an employment tribunal can award in discrimination cases and this is a particular worry at this time of year, with Christmas parties being a situation where acts of discrimination can often occur.
One way that businesses can protect themselves against discrimination claims is by having a properly drafted policy on equality and diversity, which makes clear to agency workers and employees alike what is and is not permissible.
If a business does all it reasonably can to prevent discrimination occurring, then this can be a defence if discrimination nevertheless does take place and a claim is brought. However, having the policy is not enough on its own. To be able to rely on the defence, you also need to make sure that you make people aware of the policy and this is just as important for agency workers as for anyone else.
It is advisable for HR managers at the very least to circulate their equality and diversity policy via email to all employees and agency workers in the run-up to the Christmas period, making clear that it has to be complied with, including at the Christmas party. It may sound like a sombre note to strike at Christmas, but it may help avoid a big headache in the New Year.
Nigel Crebbin is an employment lawyer at Berg
