Tayntons LLP, Gloucester on Agency Worker Regulations (AWR) : time to comply

15th July 2011 10:00

Ian Pettifer, head of employment law at Tayntons solicitors, explains the scope of the new law covering agency workers’ rights and its implications for employers.  After nearly 30 years of debate and disagreement in Europe over whether or not to have an EU-wide law based on the principle of treating agency workers equally, the Agency Workers Regulations 2010 are due to come into force on 1st October 2011.

The debate has often been polarised between those who see agency workers as suffering ill-treatment, and those who see the system as beneficial to all and vital to the economy. Do businesses treat this group unfairly in comparison with their permanent staff? On the other hand, is not agency work, especially in the UK, a personal choice, giving these workers and the businesses they work for, greater flexibility? Whatever your viewpoint on the subject, now is the time to ensure you understand the new rules, which become enforceable in a matter of weeks.

The Regulations apply to ‘agency workers’ who are assigned to do temporary work for ‘hirers’ through ‘temporary work agencies’.  There are new rights for agency workers from day one, and further rights that are granted after 12 weeks on assignment.

Under the Regulations all agency workers must be able to access a hirer’s collective facilities and amenities (things like the canteen, the crèche and the car park) from the first day of their assignment.  The hirer must also let agency workers have access to information about job vacancies from the first day. These are known as the ‘day one rights’. 

After completion of a 12-week qualifying period, agency workers are entitled to the same ‘basic working and employment conditions’ that they would have been entitled to had they been recruited directly by the hirer.  This includes a right to be paid equally with directly engaged employees or workers.

But the 12-week qualifying period can be hard to calculate, because there are a series of different events which pause the clock, without resetting it to zero, including: any break of not more than 6 calendar weeks; sickness or injury, up to 28 weeks; and any legal entitlement to time off, such as holiday. In these instances, the clock starts again once the worker is able to resume the contract.

Maternity and paternity absences mean that the clock keeps ticking. For example: A woman is given a 10-week agency work assignment.  After 5 weeks, she goes on maternity leave.  The clock would keep ticking to the end of the 10 weeks. After her maternity leave, she is supplied (either by the same agency or by a different agency) to the same hirer for a job, which is not substantively different.  In that case, the absence on maternity leave is disregarded, and two weeks into the new assignment, she becomes entitled to equality in pay with the hirer’s directly recruited workers.

Bonus payments are a possible area of difficulty.  Bonuses paid to all directly engaged workers do not count for the comparison with agency workers (like a Christmas bonus). But, bonuses linked to individual performance over a given period (for example a year) will form part of ‘pay’ for the purposes of the regulations.  If an agency worker fulfils the eligibility criteria, then they are entitled to participate.

Agency workers do not have to be fully integrated into the performance management systems for the permanent staff of the hirer.  Simpler systems are allowed for tracking an agency worker’s performance, and this could be no more than relying on existing feedback mechanisms used to work with the agency.  But the lack of a performance system is not an excuse.

There are also rules to stop businesses from trying to evade the regulations, and attempts to get around the rules can end up with a £5,000 penalty for each agency worker deprived of their rights. 

New regulations are always controversial, but these rules represent a lighter touch in the UK than elsewhere in Europe, and do no more than stop some of the worst abuses of agency workers, without taking away the clear commercial advantages.

For further information and advice, contact Ian Pettifer on 01452 509080 or email ian.pettifer@tayntons.co.uk