Agency Workers Regulations: five things employers need to know

On 1 October 2011 the Agency Workers Regulations will come into force, entitling agency workers to the same basic employment conditions as permanent recruits after 12 weeks in the same role.

With just over a month to go until the Regulations come in, is your organisation prepared for the changes? Here are five things you really need to know.

Is it just recruitment agencies that are responsible for complying with the Agency Workers Regulations?

Although agencies should take on a lot of the responsibility of compliance, employers that hire agency workers still have obligations under the Regulations. Hirers will need to give agencies information about their own employees’ employment conditions. Either the hirer or the agency, or both, could be held liable for a breach, depending on which a tribunal decides is responsible. Find out more about employer liability under the Regulations.

Under the Agency Workers Regulations will all rights be triggered after 12 weeks in the same role?

No, agency workers will also have some rights from day one of their assignments. They will have the right to access shared facilities and amenities that can be accessed by comparable employees working for the hirer, unless the employer can objectively justify not doing this. This means that agency workers will have the right to access facilities such as canteens, workplace crèches and transport services. Read more about agency workers’ day one rights.

If an agency worker moves to a new role within the same organisation after the 12-week qualifying period will they retain their rights under the Agency Workers Regulations?

The agency worker will retain the right to the same basic employment conditions as if they had continued in the same role after 12 weeks, unless the work or duties that make up the majority of the new role are substantively different. Read more about what constitutes a substantively different role.

Do self-employed people have rights under the Agency Workers Regulations?

In some cases, a self-employed worker will be considered to be an agency worker under the Regulations. Self-employed workers will not be covered by the Regulations if the agency or hirer is considered to be a “client or customer” of the self-employed person. If the individual, the hirer and the agency intend for the worker to be considered self-employed and not covered by the Regulations, there will need to be clear evidence in a written contract and in practice to this effect. Read more about self-employed workers under the Agency Workers Regulations.

If a worker is absent or has a break from the assignment, will the 12-week qualifying period be reset?

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Although some absences will have the effect of breaking service, certain breaks taken by the agency worker will only pause the time during which the worker accrues service during the qualification period. Breaks between assignments with the same organisation will pause the clock if they last for six weeks or less. Some other absences, such as sickness absence, jury service and annual leave, will also pause the clock. Find a full list of absences that will pause the qualification period here.

For full guidance on the above – along with further Agency Workers Regulations questions – see the FAQS on XpertHR.