Agency workers regulations

Reg­u­la­tions which took effect from 1 Octo­ber 2011 mean that work­ers sup­plied to a com­pa­ny, or to any oth­er enti­ty, by an agency will become enti­tled to receive pay and basic work­ing con­di­tions equiv­a­lent to any direct­ly employed employ­ees after a 12 week qual­i­fy­ing peri­od.

Guidance for businesses and other employers

Under the Agency Work­ers Reg­u­la­tions work­ers sup­plied to a com­pa­ny (or to any oth­er enti­ty) by an agency will become enti­tled to receive pay and basic work­ing con­di­tions equiv­a­lent to any direct­ly employed employ­ees after a 12 week qual­i­fy­ing peri­od.

Where an agency work­er is at the enti­ty for less than 12 weeks, a min­i­mum break of more than six weeks between assign­ments with the same employ­er will be nec­es­sary for the rights not to be avail­able.

Supporting guidance

Guid­ance can be found on the GOV.UK web­site.

Impact of the Regulations

As explained below, most of the addi­tion­al work, and much of the risk and lia­bil­i­ty, will be the respon­si­bil­i­ty of the agen­cies but it seems cer­tain that they will pass the cost on by way of high­er fees.

More direct­ly, where the ‘Employ­er’ (see below) hires staff for more than the 12 week peri­od, typ­i­cal­ly the costs of hir­ing staff will be greater. The Employ­er will also need to mon­i­tor the peri­od of time the ‘Agency Work­er’ has been at their premis­es and there may be addi­tion­al risks and costs as a result.

Terms used in the Regulations

Much of the guid­ance uses terms such as ‘Tem­po­rary Work Agency’ (the Agency sup­ply­ing the work­ers), the ‘Agency Work­er’ and the ‘Hir­er’ (being the enti­ty or busi­ness where the Agency Work­er is work­ing). In this sum­ma­ry we have gen­er­al­ly used the term ‘Employer/Hirer’ when we mean the ‘Hir­er’ although it is not strict­ly the cor­rect legal term. We have also used the word ‘Agency’ rather than ‘Tem­po­rary Work Agency’.

Rights of Agency Workers under the Regulations

Under the Reg­u­la­tions, from their first day work­ing at the Employer/Hirer, the Employer/Hirer will be required to ensure that the Agency Work­er can access what are called ‘col­lec­tive facil­i­ties’ such as can­teens, child­care, trans­port ser­vices, car park­ing, etc and that they are able to access infor­ma­tion on all job vacan­cies.

The Agency Worker’s rights are to ‘no less favourable treat­ment’ in rela­tion to these facil­i­ties , than that giv­en to a com­pa­ra­ble work­er. A com­pa­ra­ble work­er is an employ­ee or work­er direct­ly employed by the employ­er.

Then, after 12 weeks in the same job, the ‘equal treat­ment enti­tle­ments’ described below come into force.

Equal treatment entitlements and the ‘Qualifying Clock’

After com­ple­tion of the 12 week qual­i­fy­ing peri­od the Agency Work­er is enti­tled to the same basic terms and con­di­tions of employ­ment as if they had been direct­ly hired by the Employer/Hirer. These would include:

If a par­tic­u­lar enti­tle­ment com­mences only after a peri­od of ser­vice, for exam­ple, addi­tion­al annu­al leave aris­es after one year of employ­ment, then the enti­tle­ment would only start after one year plus 12 weeks.

The term ‘Qual­i­fy­ing Clock’ is used to illus­trate the work­ing of the guid­ance.

The guid­ance refers to exten­sive anti-avoid­ance pro­vi­sions pre­vent­ing a series of assign­ments being struc­tured in such a way as to pre­vent an Agency Work­er from com­plet­ing the qual­i­fy­ing peri­od and describes when the Qual­i­fy­ing Clock can be reset to zero, where the clock ‘paus­es’ dur­ing a break, and where it con­tin­ues to ‘tick’ dur­ing a break.

The exam­ples giv­en are exten­sive but include, for exam­ple:

• the clock is reset to zero where an Agency Work­er begins a new assign­ment (and a new Employer/Hirer for this pur­pose is close­ly defined) or there is a break of more than six weeks
• the clock would be paused for a break of no more than six weeks and the work­er returns to the same Employer/Hirer, or a break of up to 28 weeks because the work­er is inca­pable of work because of sick­ness or injury
• the clock con­tin­ues to tick as a result of breaks to do with preg­nan­cy, child­birth, mater­ni­ty or pater­ni­ty leave.

There are many more exam­ples giv­en in the Busi­ness, Ener­gy and Indus­tri­al Strat­e­gy (BEIS) guid­ance.

Identification of basic working and employment conditions and pay

Equal treat­ment cov­ers basic work­ing and employ­ment con­di­tions includ­ed in the rel­e­vant con­tracts of direct recruits, which would nor­mal­ly mean terms and con­di­tions laid out in stan­dard con­tracts, pay scales, col­lec­tive agree­ments or com­pa­ny hand­books. Where avail­able this would be the same pay, hol­i­days, etc as if the Agency Work­er had been recruit­ed as an employ­ee or work­er to the same job. There does not have to be a com­pa­ra­ble employ­ee (called a ‘com­para­tor’) but it would be eas­i­er to demon­strate com­pli­ance with the Reg­u­la­tions where such a per­son is avail­able.

Pay is defined as includ­ing and exclud­ing a num­ber of ele­ments, most of which are shown below.

Working time and holiday entitlements

In addi­tion to an agency worker’s exist­ing rights under the Work­ing Time Reg­u­la­tions 1998, after 12 weeks, the work­er becomes enti­tled to the same rights for work­ing time, night work, rest peri­ods and rest breaks, annu­al leave and over­time rates, as direct­ly employed employ­ees.

The guid­ance recog­nis­es that some Agency Work­ers already receive these ben­e­fits from the date they join the Employer/Hirer and men­tion as an exam­ple that Employers/Hirers often offer a lunch hour rather than the min­i­mum 20 minute rest under the Work­ing Time Reg­u­la­tions. The guid­ance also includes a reminder that the statu­to­ry enti­tle­ment to paid hol­i­day leave is 5.6 weeks per year.

Pregnant workers and new mothers

After the 12 week qual­i­fy­ing peri­od preg­nant work­ers will be allowed paid time off for ante­na­tal appoint­ments and class­es and if they can no longer car­ry out the duties of their orig­i­nal assign­ment they will need to be found alter­na­tive sources of work. If no such alter­na­tive work is avail­able from either the Employer/Hirer or the Agency, the Agency should pay the preg­nant woman for the remain­ing expect­ed dura­tion of the assign­ment.

The pro­vi­sions of the Equal­i­ty Act also apply, mean­ing that there is a risk that either an Agency or the Employer/Hirer could be guilty of dis­crim­i­na­tion if a work­er were to receive less favourable treat­ment as a result of their preg­nan­cy or mater­ni­ty.

If the nature of the assign­ment is such that there is a risk to the worker’s health and safe­ty, the Agency will need to ask the Employer/Hirer to car­ry out a work­place risk assess­ment, which they will need to do.

Information likely to be requested by an Agency

To com­ply with these Reg­u­la­tions, agen­cies may need to col­lect cer­tain infor­ma­tion from the Employer/Hirer before an assign­ment begins. This is in addi­tion to their exist­ing oblig­a­tions under what are known as the Con­duct Reg­u­la­tions 2010 and the Gang­mas­ters Licens­ing Reg­u­la­tions (for the food, agri­cul­tur­al and shell­fish sec­tors).

Where an assign­ment is like­ly to last for more than 12 weeks, it will prob­a­bly be good prac­tice for the Agency to ask for infor­ma­tion at an ear­ly stage though the Reg­u­la­tions do not refer to any par­tic­u­lar timescale.

It is like­ly that the Agency will also ask for infor­ma­tion about any day one enti­tle­ments which may be avail­able, even though they are the respon­si­bil­i­ty of the Employer/Hirer.

Liability and remedies

The respon­si­bil­i­ty lies with the Employer/Hirer to pro­vide day one enti­tle­ments and claims would prob­a­bly be against the Employer/Hirer.

Claims with regard to basic work­ing and employ­ment con­di­tions could be against either the Employer/Hirer, or the Agency, or against both, depend­ing on the nature of the breach and whether, for exam­ple, the Employer/Hirer had failed to pro­vide infor­ma­tion to the Agency. Claims would be made to an Employ­ment Tri­bunal if not resolved through griev­ance pro­ce­dures and/or pos­si­bly through the involve­ment of ACAS.

Employ­ment Tri­bunals would be able to award finan­cial com­pen­sa­tion or rec­om­mend action that should be tak­en.