Hot on the heels of new Acas guidance for agency workers, Charlotte Allery, solicitor at Coffin Mew, provides an overview of the guidance and a reminder of their key legal rights.
Last month, Acas released new guidance for agency workers after its helpline identified that many agency workers were not aware of their legal rights. The Acas helpline revealed that it had received 10,754 calls in 2017 about agency workers, with 3,150 calls being complaints about not being paid correctly.
Acas senior guidance adviser, Tom Neil, commented that “it is clear that there are agency workers who are unsure about their rights at work”. But are companies aware of their legal obligations towards agency workers?
Indeed, recent cases such as Kocur v Angard Staffing Solutions, where the Royal Mail Group was found to be in breach of the Agency Workers Regulations for treating an agency worker less favourably, highlight that many companies are unclear of the legal requirements.
We consider some of the important questions and rights concerning agency workers below:
What is an agency worker?
An agency worker is an individual who has a contract with a recruitment company, to be supplied to work temporarily for a hiring company (or, as commonly known, a temp). This tripartite relationship means there are obligations on two parties: the agency and hiring company.
A genuinely self-employed individual will not be an agency worker, so if the individual is on business on their own account, the following rights will not apply to them.
Agency Workers Regulations 2010 (AWR)
The AWRs provide important rights for agency workers, concerning their basic working and employment conditions, from day one and after a 12-week qualifying period.
Day one rights: From the first day of an agency worker’s assignment, he or she must be given the same access as directly employed staff to facilities and amenities. This includes the canteen, childcare facilities (such as a crèche) and car-parking or transport services.
Agency workers also have the right to be informed of any relevant job vacancies at the hiring company, to give them the opportunity to find permanent employment.
Importantly, the liability for failing to provide day one rights will fall on the hiring company only, as an agency has no involvement in providing these day one rights.
Week 12 rights: An agency worker will be entitled to the same basic conditions as they would have been entitled to for doing the same job, had they been directly recruited by the hiring company.
This only applies once they have undertaken the same role, whether on one or more assignments, with the same hirer for 12 continuous calendar weeks.
There are complicated rules surrounding calculating the 12-week qualifying “clock”, so it might be worth speaking with a legal adviser if you are in any doubt whether an individual has reached the qualifying period.
The equivalent terms and conditions that agency workers are entitled to after the qualifying period are:
- pay (including basic pay, holiday pay, individual performance-related bonuses, commission or overtime);
- duration of working time;
- night work;
- rest periods;
- rest breaks; and
- annual leave.
This must be looked at on a term-by-term basis, rather than looking at the whole package. As recent case law has shown, it is not possible to compensate for less favourable terms in one respect, with more favourable terms in another (for example, a higher hourly rate to compensate for poorer rest breaks).
Importantly, an agency and a hiring company are each responsible for a breach of an agency worker’s week 12 rights, to the extent that they are responsible for the infringement.
It is therefore crucial for both parties to work together to ensure that the individual receives the correct terms and conditions.
What about pensions auto-enrolment?
Pensions are not included within the AWR, which does mean that agency workers are not entitled to pensions that match what they would receive directly from the hiring company.
However, agency workers are still jobholders for the purposes of automatic enrolment. As such, agency workers must be automatically enrolled into a qualifying pension scheme.
The responsibility for automatic enrolment will fall on the agency, which has the contract with and pays the individual directly.
What about statutory sick pay (SSP)?
Provided the qualifying conditions are satisfied, agency workers will be entitled to receive SSP. Again, the obligation to pay this to the individual will fall on the agency, but commercial arrangements may dictate that the hiring company has to cover the cost.
Any enhanced company sick pay that a hiring company offers will not come within the AWR, so an agency worker will not be entitled to receive this.
What parental rights do they have?
The AWR contains specific requirements for pregnant workers, once the 12-week qualifying period has been met.
After this time, pregnant workers are entitled to paid time off for antenatal appointments, and alternative work (or pay) must be provided where they are unable to continue with an assignment for health and safety reasons.
Agency workers are entitled to statutory maternity, paternity, adoption or shared parental pay, if the qualifying conditions are met. The obligation to pay these statutory amounts will fall on the agency, with the contract with the individual.
However, agency workers will only be entitled to statutory maternity, paternity, adoption or shared parental leave if they are employed by the agency (as in, they have a contract of employment, rather than the usual contract for services).
What next for agency workers’ rights?
The topic of atypical ways of working, including agency work, is a hot topic right now, with the Government still running a consultation on the recommendations made in Matthew Taylor’s review of modern employment practices.
His review contained a number of recommendations specifically affecting agency workers, so the above rights may be expanded upon in due course. Watch this space.