Weekly dilemma: Agency Workers Regulations 2010

I run a catering company that requires us to hire temporary staff depending on how busy we are. How will the new Agency Workers Regulations affect us?

The Agency Workers Regulations 2010 are aimed at providing agency workers with basic working and employment conditions that are no less favourable than had they been recruited directly by you. Some of the new duties will fall on the agency and others will fall on you. Some of the new rights will apply from the very first day that the agency worker works for you and other rights will only apply once the agency worker has been working for a qualifying period of time. It is important that you speak to the agency that you use about how they plan to address the challenges of the new rules.

From the start of a worker’s assignment, an agency worker has the right to be treated no less favourably than a comparable employee or worker in your business in relation to “collective facilities and amenities”, unless less favourable treatment is objectively justified. Collective facilities and amenities include: a canteen or other similar facilities; a workplace crèche; transport services (in this context, local pick-up and drop-off, and transport between sites, not company car allowances or season ticket loans); toilet/shower facilities; staff common room; food and drinks machines; and car parking.

Collective facilities and amenities do not extend to off-site facilities or benefits in kind which are not provided by you, such as subsidised access to an off-site gym (which would normally form part of a benefit package to reward long-term service and loyalty).

Further, an agency worker has the right to be told of any “relevant vacancies” in your business during their assignment, in order to be given the same opportunity as a comparable employee or worker to find permanent employment with you.

After a qualifying period has passed, an agency worker is entitled to the same “basic working and employment conditions” given to directly recruited employees. These basic entitlements are in relation to pay, the duration of working time, night work, rest periods, rest breaks and annual leave. Pay includes fees and commission, overtime and shift allowances, bonuses based on performance (rather than longer-term and/or company-wide bonuses or share schemes) and vouchers not provided under salary-sacrifice schemes (for example eye test vouchers). It will not include: occupational sick pay; pension or other payments in connection with retirement or loss of office; pay for maternity, paternity and adoption leave; redundancy payments; bonuses that are not directly attributable to the amount or quality of work done by the agency worker; loans; and expenses.

These entitlements do not apply until an agency worker has undertaken the same role, whether on one or more assignments, with the same hirer for 12 continuous calendar weeks.

There are some complex rules that apply to the calculation of the 12-week qualifying period which create circumstances in which continuity will be broken, circumstances in which continuity will be suspended, and circumstances in which it will continue to accrue despite the agency worker’s absence. For example, you could employ an agency worker for six weeks, they could then have a break for six weeks, followed by another six weeks work with you. You might then have a two-week period when you have a planned closedown after a busy period and then re-hire them. When the worker returns they will have clocked up the 12-week qualifying period.

You should think twice about trying to work around the Regulations. The new rules give employment tribunals the power to impose a fine of £5,000 – which the tribunal can apportion between you and the agency – for manipulating jobs or the length and number of assignments to stop workers from becoming entitled to their rights.

Kevin McKenna, senior associate, Weightmans LLP

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