Ian Luck discusses the arrival of the Agency Workers Regulations and the impact on both employers and agencies.
From October 2011 the Agency Workers Regulations 2010 (AWR) come into force. The AWR implement the Temporary and Agency Workers Directive approved by the European Parliament in 2008. Agency workers in the UK who have worked for a company for more than 12 weeks will have the same basic employment rights and working conditions as if they had been recruited directly by the company.
From the first day of an agency worker's employment, employers must ensure the agency worker has access to amenities like the canteen, childcare facilities, transport services and job vacancies, just as any permanent member of staff would have. Pregnant agency workers will also be allowed to take paid leave for ante-natal appointments during an assignment.
After 12 weeks in the same job, the new equal treatment entitlements relate to pay and other basic working conditions, such as annual leave, overtime, night work and rest periods. The definition of pay is wide and covers holiday pay, paid bank holidays, overtime rates, shift allowances, unsocial hour premiums and bonuses related to performance.
While some liability will lie with recruitment agencies, which will face increased payroll and administration costs, together with a potential rise in tribunal claims, ill-prepared employers could also face a rise in costs.
Employers who hire workers through agencies will have to provide the agency with up-to-date information on terms and conditions so they can ensure that an agency worker receives the equal treatment they will be entitled to. Agencies are responsible for monitoring and ensuring that both the agency worker and hirer are kept informed of any changes to the pay and basic working entitlements after the 12-week qualifying period.
The hirer would be liable if they do not provide the agency worker with 'day one' rights, but both the hirer and the agency could be held liable for pay and conditions breaches after 12 weeks.
Agency workers will also be included within the pension auto-enrolment regulations that are being introduced with effect from October 2012.
The AWR are backed by a range of antiavoidance measures to prevent employers from breaking the new rules. Recourse for agency workers through a compensation order via an employment tribunal can be had if a complaint is upheld. In cases where avoidance of the new AWR is found an additional £5,000 may be fined.
There have been many ideas as to how an employer could reduce the impact of the AWR, including limiting the use of agency workers for assignments to a period of fewer than 12 weeks. There are, however, the previously mentioned antiavoidance provisions that address situations where it is deemed that assignments are designed deliberately to deprive agency workers of their entitlements.
Negotiating exclusivity deals with agencies in exchange for them agreeing to absorb some of the additional costs is another way employers could reduce the impact of the AWR. With most employers using agency workers from time to time it would seem prudent that these negotiations start soon.
Guidance notes issued by the Government can be found on the department for business innovation and skill's website: www.bis.gov.uk
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