Agency Worker Regulations 2011 – Employers need to know this!

The Agency Worker Regulations came into effect on 1st October 2011 and state that agency temporary workers, after 12 weeks of temporary employment in the same job (but not having to be 12 continuous weeks), are entitled to the same basic pay and employment conditions as a comparable permanent employee within that business.

At day one of a temporary assignment, agency workers are entitled to the same access as permanent employees to collective facilities and amenities (such as canteen, parking, childcare, permanent vacancy notifications).

Who do they apply to?

  • Agency workers who are employed  or personally contracted to perform temporary work through an employment business (‘Agency’).
  • Not those employed directly by an employer (including fixed term contracts).
  • Not independent contractors/ consultants who are working through their own personal service companies.

Who is liable?

For the 12 week rights:

  • Both the ‘Hirer’ (end user) who is supervising/hosting the worker.
  • And the ‘Agency’ who is supplying the worker (although the agency has a reasonable defence it if can prove it took steps to obtain the comparator information – explained later).

For day one rights:

  • Just the hirer is liable if access is not granted to collective facilities.

Regulation Details

There are a couple of main points to understand around these Regulations: 1) Qualifying Period, 2) Definitions and 3) Enforcement/Avoidance.

12 week Qualifying Period:

It is important to realise that a temporary worker does not have to work for 12 continuous weeks to earn the right to ‘equal treatment’ as permanent staff. Neither does the 12 weeks have to only be through one supplying Agency. The Qualifying Period is simply measured in relation to one worker performing the same role at the same hirer.

What starts a 12 week qualifying period from scratch?

  • A temporary assignment with a new hirer.
  • More than six week break between assignments (with some exceptions – see below).
  • A substantially different role from previous with the same hirer (the worker must have received confirmation of the ‘new role’ in writing from the agency).

What time away from the workplace still counts as continuous working?

  • Maternity and pregnancy related absences, and for up to 26 weeks after child birth.
  • Adoption and paternity leave

What time away doesn’t count towards the 12 weeks nor the six week break period? (i.e. pauses the clock and doesn’t wipe off nor add to the previous weeks worked)

  • Up to 28 weeks jury service
  • Up to 28 weeks sick leave
  • Statutory or contractual leave/ time off (excluding the above maternity/ paternity etc.)
  • Workplace closure as standard practice (e.g. Christmas)
  • Strike action

Definitions

‘Agency temporary workers are entitled to the equivalent basic pay and working conditions as comparable permanent employees’.

Basic Pay

  • Means all sums payable in relation to the position and personal performance. This includes salary, commission, holiday pay, overtime, work premiums, bonuses related to personal performance (if standard for the business).
  • NOT sick pay, maternity pay, redundancy pay, pensions, share save schemes, bonuses which aren’t personal performance (e.g. company profit share), benefits in kind (e.g. company cars).

Comparable Permanent Employee

  • Means a method of finding an individual within the business who has similar skills, experience, qualifications or any other potential elements that can be used to compare their pay and working conditions to those of the temporary worker(s) in question.
  • Ideally this is someone doing a similar job but, if this isn’t possible, all reasonable methods of comparison must be shown to have been considered.

Enforcement/ Avoidance

After 12 weeks in a position, the temporary worker can make a request to the Agency for information regarding the hirer’s basic employment terms and conditions, as well as the comparator information that had been used to benchmark.

  • The agency should provide this within 28 days.
  • If not received within 30 days, the worker can request this directly from the Hirer.
  • The worker has a similar right to request information from the Hirer from day one in relations to job vacancies and facilities (i.e. details regarding day one rights as outlines earlier).
  • Employment tribunals should be raised within a 3 month time limit.

It should be noted that attempts to avoid the Regulations (e.g. employing a temp for 11 weeks and then employing a new temp to replace them in the same job), will not be seen favourably at an employment tribunal.

Please note, these details should not be regarded as legal advice – they are solely for the information purposes with the aim of increasing awareness of the recent regulations to client of MRK Associates.

Speak to any employment agency, including MRK Associates, should you require any further information or wish to know more about this legislation. However, please speak to a firm of solicitors if you require legal advice.

Remember, the Regulations came into force on 1st October 2011 so agency temporary workers who have been in continuous employment for 12 weeks will be entitled to these conditions from 26th December 2011.

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