UK: Equal Treatment For Agency Workers?

Last Updated: 7 November 2011
Article by Katy Wedderburn and Karen McGill

The Agency Workers Regulations 2010 (as amended) came into force on 1 October 2011.

Under the Regulations, after 12 weeks of continuous employment, agency workers are entitled to terms and conditions that are no less favourable than employees who they are working alongside on similar work who are not agency staff.  This includes conditions such as pay, rest breaks and holidays.  Agency workers will also be entitled to take time off work for ante-natal appointments on similar conditions as non agency workers, and should be paid at the normal hourly rate by the agency for this time off. 

It is important to note that the Regulations are not retrospective; for agency workers who were already on an engagement, the 12 week qualifying period began to run from 1 October 2011, and not the date on which their engagement commenced.  The Regulations also contain anti-avoidance provisions designed to prevent assignments from being structured in such a way as to circumvent the Regulations.

In addition to acquiring basic employment and working conditions after 12 weeks, agency workers will be entitled to access collective facilities and amenities that are accessible by other staff, from the beginning of their engagement (from 1st October 2011).  This includes facilities such as the canteen, crèche, toilet and shower facilities, common room, prayer room and vending machine.  Agency workers must not be treated less favourably in this regard, unless the hirer can show that it is objectively justified.  The hirer would have to be satisfied that there is good reason for doing so – cost alone is unlikely to be able to justify less favourable treatment, but practical or organisational factors may provide a justification.

From the beginning of their engagement, agency workers will also be entitled to be informed of any suitable posts which become vacant within the hirer's organisation, and to be given the same opportunity as a comparable worker to find permanent employment with the hirer.

Liability for breach of day 1 rights will always lie with the hirer given that the agency has no control over access to facilities and information at the hirer's premises.  On the other hand, liability for breach of entitlements acquired after 12 weeks can lie with either the agency or the hirer, depending on the extent that each is responsible for the breach.  However, an agency will have a defence where it has obtained, or has taken reasonable steps to obtain, information about the basic employment and working conditions of the hirer, and acted upon that information in trying to ensure the basic employment and working conditions of the agency worker. 

It is important that agencies and hirers exchange information to ensure agency workers are treated appropriately under the Regulations. 

The Regulations are significant and require all employers who engage agency staff to consider their current arrangements.  Furthermore, there will unavoidably be a considerable financial impact on UK businesses - the Government's Impact Assessment estimated that their implementation will cost £16,377,000,000.

© MacRoberts 2011

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