Talking Point: Know their rights
Companies that rely heavily on agency workers could face a hefty bill and an administrative headache when the controversial Agency Workers Regulations 2010 come into force on 1 October this year.
The regulations will apply to most workers who are supplied by an agency to a hiring company and will introduce two significant new employment rights.
From day one of an assignment, an agency worker will be entitled to the same access to the hirer’s canteen facilities, childcare facilities and transport services as a comparable employee of the hirer, unless there is objective justification to deny access. They will also have the same right to be informed about vacancies and opportunities to find permanent work with the hirer as other employees.
After a 12-week qualifying period, agency workers will have the same right to “basic working and employment conditions” as if they had been directly recruited by the hirer. This includes pay, duration of working time, length of night work, rest periods and rest breaks and annual leave. A new qualifying period will only begin if a new assignment with the same hirer is substantially different, or if there is a break of more than six weeks between assignments.
A word of caution, however, if you are looking for a way to avoid the regulations: an agency worker can claim compensation in an employment tribunal if they feel they have not received equal treatment. There are also anti-avoidance measures in the regulations and the risk of an additional award of up to £5,000 to discourage employers from structuring assignments which prevent equal treatment.
Preparation for the arrival of the new legislation is therefore crucial and the following checklist should prove useful in managing and, where appropriate, limiting the impact of the regulations.
• Assess the likely impact of the regulations on your organisation. For example, what roles do you currently fill with agency workers? What terms and conditions will be caught and need to be replicated for agency workers?
• Consider alternative staffing options to achieve the required flexibility, for example through use of increased overtime, zero hours contracts or engaging self-employed consultants.
• Review the contracts of your current agency workers and consider moving instead to direct recruitment or an arrangement whereby a third party employs the workers directly.
• Engage agency workers in different ways to ensure they are only used for less than 12 weeks or are moved into a substantially different role.
• Ease administration by negotiating exclusivity with one or a handful of suppliers.
• Review your internal procedures for booking agency workers to ensure you provide accurate and up-to-date information to agencies about your basic working and employment conditions.
• Renegotiate terms with suppliers to include appropriate indemnity protection to cover the risk of any breach of the regulations.
• Prepare to give agency workers equal access. For example, do changes need to be made to collective facilities?
Government guidance will be issued at least 12 weeks before the regulations come into force.
Rebecca Sawbridge is head of employment in Birmingham at law firm the Freeth Cartwright
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