UK: Are you ready For The Agency Workers Regulations 2010?

Last Updated: 5 August 2011
Article by Andy Williams and Rebecca Strevens

On 1 October 2011, the Agency Workers Regulations 2010 (Regulations) will come into force, implementing the Temporary Agency Workers Directive. The Regulations entitle "agency workers" to certain employment rights in line with those received by comparable employees or workers of the hiring company (hirer) from either Day 1 of their assignment with the hirer or after completion of a 12-week qualifying period.

Whilst the Regulations do not have retrospective effect, care homes engaging agency workers on or after 1 October must ensure that agency workers are not denied these rights. Under the Regulations, agency workers are not entitled to more favourable treatment than the hirer's employees or workers, only equal treatment.

Care home operators who regularly hire agency workers on both a temporary and longer term basis need to understand the obligations on hirers under the Regulations; the Government has recently published guidance to assist hirers. Those who fail to comply with the Regulations can face financial penalties before an Employment Tribunal.

Application of the Regulations

"Agency workers" are individuals supplied by a work agency to work temporarily for, and under the direct supervision of, a company (the hirer). Agency workers have a contract of employment or a contract to perform services personally with the agency. The Regulations will not apply to individuals who are self-employed, or whose services are provided through a service company and the hirer is a client or customer of that company. Neither will the Regulations be triggered in situations where an agency is placing individuals in permanent roles with a company.

Equal Treatment

Day 1 rights From the outset of an assignment, agency workers will be entitled to equal access to collective facilities and amenities (such as childcare or canteen or transport services) provided by the hirer to a comparable worker or employee. Agency workers will also be entitled to access to information about vacancies within the hirer which would be available to a comparable worker (for example, via an intranet facility). Entitlement to these Day 1 rights relies on there being an actual "comparator" (an employee or worker of the hirer who does the same, or a sufficiently similar, job to the agency worker) based at the same establishment as that agency worker.

Rights accrued after completing a 12-week qualifying period

After completing a 12-week qualifying period with the same hirer (see below), an agency worker will be entitled to the same basic terms and conditions of employment as if they had been employed or engaged directly by the hirer. These are:

  • pay (basic pay and additional pay directly linked to work undertaken, including overtime, shift allowances, unsocial hours payments, vouchers or stamps with a monetary value (e.g. luncheon vouchers) and bonuses linked to individual performance);
  • duration of working time;
  • length of night work;
  • rest periods,
  • rest breaks; and
  • holiday entitlement.

An agency worker's entitlement to equal treatment in relation to "pay" does not extend to sick pay, maternity, paternity and adoption leave or redundancy payments, for example. Nor do the Regulations give agency workers unfair dismissal rights or other employment rights. However, under the Pensions Act 2008, agency workers will have the benefit of workplace pension saving with an employer contribution from 2012, when the NEST (National Employment Savings Trust) legislation comes into force.

12-week qualification period

To qualify for the rights to equality of pay, hours and holiday set out above, an agency worker must work in the same or substantively the same role, with the same hirer for 12 calendar weeks (regardless of how many hours they work on a weekly basis).

The clock for calculating the qualification period will "pause" for any period of time the agency worker ceases work due to annual leave, and for up to 28 weeks if the worker is absent due to jury service or sickness. The clock will also "pause" where there is a break between assignments if the break is not more than 6 weeks. Where an agency worker is absent through contractual or statutory maternity, paternity or adoption leave, pregnancy or maternity related absence), the clock will continue and their absence will count towards the qualifying period.

Liability

Hirers are responsible for ensuring agency workers receive their Day 1 rights. Thereafter, it will be agencies (rather than the hirers) who will have primary liability for breach of the equal treatment principle. Agencies will have a defence if they can show that they have taken all reasonable steps to obtain the necessary information from the hirer and acted reasonably in determining the agency worker's rights. Care homes, as hirers, could be liable if they are responsible for the infringement; for example, by failing to provide sufficient information on comparable employee or worker's terms and conditions.

Care homes should be aware that the Regulations require information to be passed between the hirer, the agency and the worker. Agency workers can make written requests for information relating to basic working and employment conditions and comparators from the agency. If the agency fails to respond to such a request within the prescribed 28-day timeframe, the agency worker can request the information from the hirer. An Employment Tribunal would be able to draw adverse inferences from any failure to respond or an inadequate response.

Action Points

Prior to 1 October, care homes should:

  • review the positions for which agency workers are engaged and identify any comparable employee or worker at that establishment;
  • ensure that agency workers can utilise collective facilities and amenities and can access job vacancies within the care home from Day 1 of their assignment; and
  • implement any necessary systems to keep track of agency workers' assignments and rest breaks (where workers are engaged on a repeated basis) to ensure that necessary information can be supplied to agencies as required.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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