The Agency Workers Regulations came into force on 1st October 2010 with the aim of ensuring that temporary agency workers receive equal treatment to direct recruits.
Many businesses rely upon agency workers to supplement their permanent workforce on an ad hoc basis depending on work flow, and will call upon the services of employment agencies to provide temporary workers. Under the new Regulations, agency workers who believe they have not been treated equally as compared to direct recruits may bring a claim against both the agency and the end-user.
Agencies and end-users liable
Both agencies and end-users of agency workers therefore need to ensure that their business practices are compliant with the new Regulations and this article will briefly outline the rights granted to agency workers with effect from 1st October.
Some rights are instant whereas others only accrue to workers after they have spent 12 weeks on the same assignment as follows:
• Day 1 rights:-
From the outset of an assignment an agency worker is entitled to:
1. Equal access to collective facilities e.g. canteen, crèche, transport; and
2. Information on job vacancies at the end-user.
• Accrued rights:-
After 12 weeks on the same assignment an agency worker will accrue the right to the same basic working and employment conditions as a direct recruit. These ‘conditions’ are pay, duration of working time, night work, rest periods, rest breaks and annual leave.
When do rights accrue?
While this may seem straightforward, the calculation of the 12-week period for the purpose of determining whether or not an agency worker has ‘accrued rights’ may be difficult in practice as the 12-week qualifying period is applied flexibly. A worker who has not worked on the same assignment for 12 consecutive weeks may still qualify for accrued rights since the 12-week qualifying period allows for breaks in continuity.
If a worker is absent due to pregnancy/child birth or is on maternity/paternity leave then their absence will not stop them accruing time on the same assignment.
On the other hand, some breaks merely preserve continuity but the worker does not continue to accrue time. For example, any breaks of up to 6 weeks, breaks due to seasonal closure of the business, closure due to industrial action or breaks of up to 28 weeks due to illness or disability will not break continuity. So, when the worker resumes work on the same assignment they will begin to accrue time again from the end of their last period on assignment.
If you are an employment agency or an end-user of agency workers, now would be a good time to review the terms and conditions upon which such workers are either supplied and/or the benefits afforded to such workers whilst on assignment in order to avoid falling foul of the new Regulations.
This article was written by Lara Murray a solicitor in our Employment Department.