Agency Workers Regulations

20th September 2011

Recent press reports have indicated that David Cameron continues to have concerns about the impact of the Agency Workers Regulations on business during the recession. However, the Government has since clarified that it has no intention of amending the Regulations at such a late stage and they will enter into force on 1 October 2011, in their current form.

The Regulations are intended to ensure equality of pay and certain benefits to agency workers supplied temporarily to work for the agency’s client. This entitlement will generally be when compared with the normal working and employment conditions of the hiring organisation’s employees. The entitlement is established if the agency worker has worked for a company for 12 weeks or more, and whether during one or more assignments

So for example, if two individuals work on a manufacturing line, the agency worker should be paid the same as the equivalent employee of the same company and will have access to some benefits, such as overtime, shift allowance and the same holiday entitlement. In some cases, the agency worker will also be entitled to the same bonus payment as the employee.

There are also certain rights which agency workers will have with effect from their first day of work. These relate to access to facilities (such as a canteen, workplace crèche, transport services and car parking) and access to information regarding vacancies with the company.

With all the speculation about the impact of the Regulations, which has mainly focused on the additional cost and administrative burden, there are perhaps a number of other pitfalls within the Regulations that businesses have not yet managed to get to grips with.

The Regulations introduce new rights for pregnant women and nursing mothers. This means that after completing the 12-week qualifying period, a company which has hired a pregnant agency worker must provide her with paid time off to attend ante-natal medical appointments and ante-natal classes. It will be the agency that will pay for her time off. In addition, the agency’s client will be under a duty to make reasonable adjustments to protect agency workers from identified risks if they are pregnant, have recently given birth or are breastfeeding.

There are certain times when the 12-week qualifying period is either paused or not reset. For example, the 12-week clock will be paused if there is a break, for any reason, which is not more than six calendar weeks or there is a break of up to 28 weeks as a result of sickness or injury.

There are also specific ‘anti-avoidance’ measures in the Regulations. These were introduced to ensure that hiring companies could not structure assignments in a manner that prevented a worker from acquiring equal rights. For example, businesses should be aware that a worker on assignment with one agency, who then switches to another agency, but continues to work for the same company will continue to accrue service.

Under the Regulations if an agency worker is working for the same company but in a different role to the previous role, the clock will restart. However, employers will need to ensure that the new role is substantially different; otherwise this could be viewed as an anti-avoidance measure.

If an agency worker feels that he is being deprived of his rights under the Regulations, employment tribunals will be able to make an additional award of up to £5,000 where a business or an agency is found to have breached the anti-avoidance provision.

The full impact of the Regulations will not be felt until they have been implemented in October. Even then it may take time to determine the real impact on businesses, and agency workers themselves. The UK’s biggest recruitment agency, the Recruitment and Employment Confederation is calling for a comprehensive review of the Regulations one year after implementation. Such a review may allow the advocates and the sceptics time to consider whether the Regulations do in fact do what they were designed to do.