The Agency Workers Regulations 2010 came into effect last October. They give agency workers certain rights from the first day in an assignment and, after 12 weeks' service in that assignment, they will be entitled to basic terms and conditions of employment that are no less favourable than the terms they would have been entitled to had they been hired directly by the organisation in which they are working.
WHO IS COVERED BY THE REGULATIONS?
The regulations apply to individuals who have a contract with a temporary work agency and who are supplied by that agency to work temporarily under the supervision and direction of a 'hirer' (the agency's client).
In general terms, the supervision and direction of an agency worker by the hirer is what makes an individual an agency worker. This means that if a worker accepts direct instruction in relation to their work from the agency (their employer) and not from the 'hirer', they will fall outside the scope of the regulations. Consequently genuine outsourcing arrangements (such as a third-party caterer operating an in-house canteen) are not affected by the regulations because the contractor's personnel are not subject to supervision by the 'host' organisation. In addition, the genuinely self-employed are out of scope because they are effectively supplying themselves and are not being supplied by an agency.
ENTITLEMENTS FROM THE FIRST DAY ON AN ASSIGNMENT
Access to information about the hirer's job vacancies
For most organisations the 'access to information' will be the same as for the hirer's employees so that, for example, if the hirer has a 'vacancies' board, the agency worker will need to be told of its whereabouts so that he or she has the same access to information about job vacancies.
There is no requirement for the hirer to do anything 'special' in relation to the agency worker unless, for example, vacancies are notified through an intranet system and the agency worker has not been given access to the hirer's intranet. In this situation the hirer will need to devise a method to ensure that the agency worker is also kept informed of any internal vacancies.
The same access to the hirer's collective facilities and amenities as the hirer's employees
These facilities and amenities are generally limited to on-site facilities and include a canteen or similar facilities, a workplace crèche, toilet/shower facilities, vending machines, car parking, etc
.
Again, the 'access' should be the same access as the hirer's employees, so if there is a waiting list for car parking spaces, then the agency worker is entitled to join the waiting list on the same terms as the hirer's employees. In addition, the 'access' does not normally include access to off-site facilities, such as off-site gym facilities provided as part of a benefit package.
ENTITLEMENTS AFTER 12 WEEKS IN THE SAME JOB
After 12 weeks in the same or similar job with the same hirer (the 'qualifying period') an agency worker will be entitled to the same basic pay and other basic working conditions (annual leave, rest breaks etc) as the equivalent hirer's employees. This applies even if the agency worker has been supplied by more than one agency during the 12-week period. In addition, after completing the qualifying period, pregnant agency workers will be allowed to take paid time off (paid by the agency) for ante-natal appointments during an assignment. Note also that the 'structuring' of assignments, such as attempting to defeat the objective of the regulations by moving the agency worker to a slightly different job after 11 weeks, is prohibited.
These entitlements are not retrospective and, for those agency workers already on an assignment before 1 October 2011, the 12 week qualifying period starts from 1 October 2011.
The same basic pay
The same basic pay is the same pay as permanent employees, including individual performance bonus schemes, contractual overtime pay and shift allowances, etc., but excluding group bonuses, incentive payments and rewards.
Under Regulation 10 of the Agency Workers Regulations 2010, an agency can derogate (opt-out) from the requirement to pay an agency worker the same basic pay as permanent employees after 12 weeks in an assignment by giving the agency worker a permanent contract of employment, rather than offering them work 'as and when'. There are strict rules relating to this derogation, often referred to as 'the Swedish derogation', and agency workers are entitled to refuse to accept a 'Regulation 10 contract'.
The same basic working conditions
The same basic working conditions include comparable hours, breaks and holiday entitlement but do not include company notice periods, sick pay, redundancy pay, pension arrangements or benefits in kind.
PENALTIES
In addition to failing to give access to collective facilities and amenities and to view information on job vacancies from the first day of their assignment, there are two main offences for those who hire agency workers. These relate to information to ensure equal treatment after 12 weeks in the same assignment:
- Failure to provide information requested by the agency on pay and basic working conditions.
- Providing false information to the agency about pay and basic working conditions.
There are also two main offences for temporary work agencies in relation to temporary workers who will be with the hirer for more than 12 weeks:
- Failure to request information from the hirer on pay and basic working conditions.
- Failure to give the agency worker the same basic pay and working conditions as the equivalent hirer's employees, based on the information supplied by the hirer.
This factsheet has been provided by Citation plc who has been operating throughout the UK since 1995. Citation provides professional advice and compliance packages to business clients. Independently endorsed at the highest level its market leading services provide guaranteed protection in the high risk areas of employment law and health & safety regulations.
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(c) Copyright Citation plc This Fact sheet is only intended as a general statement and no action should be taken in reliance on it without specific Helpline advice.Visit the Citation website for more information on their services www.citation.co.uk
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