Legal Ease

The Agency Workers Regulations 2010 will now come into force in October 2011. The government has now taken the decision not to make amendments to the Regulations, but will instead use the next 12 months to develop the "best possible" guidance to help employers comply with their obligations under these complex regulations.

KEY POINTS
The Regulations only apply to agency workers. Agency workers are defined as “workers supplied by a temporary work agency” to work “temporarily for and under the supervision and direction of a hirer”. These workers are more commonly referred to as “temps”.
Agency workers will have some rights immediately as they start working for you as a temp, including:

· The right to information regarding any current job vacancies

· The right to equal access to on-site facilities such as your staff canteen, child care arrangement and transport services

Upon completion of a 12 week qualifying period, an agency worker will be entitled to the same basic working and employment conditions as if he/she had been recruited directly by you on day one of the assignment, whether as an employee or a worker. These will include:

· Pay - including any contractual overtime pay and shift allowance payment

· Bonuses - provided that they are “directly attributable to the quality or quantity of work done by the agency worker”

· Maximum working time protection

· Length of night work protection

· Rest periods

· Rest breaks

· Annual leave entitlement

Agency workers will not be eligible to:

· Occupational sick pay

· Redundancy pay

· Maternity, Paternity or Adoption leave payments

· Membership of financial participation share schemes

· Occupational pension

· Notice pay

· Bonuses, incentive payments or rewards “not directly attributable to the amount or quality of the work done by a worker”

Benefits in kind are excluded but vouchers or stamps of a fixed monetary value (such as luncheon vouchers) are included. Like all new legislation, there will inevitably be grey areas.

PRACTICAL STEPS TO TAKE BEFORE THE AGENCY WORKERS REGULATIONS 2010 COME INTO FORCE
Employers should consider:

· Reviewing the use of agency workers within their own business

· Reviewing how compliance will impact upon costs and practices and consider whether there are more cost-effective ways of meeting your flexible labour needs

· Improving record-keeping to assist not only with the provision of relevant information to agencies (when requested), but also to monitor when individuals have satisfied the qualifying 12 week period

· Consider how agency workers might access news on internal vacancies

· Negotiating exclusivity with fewer agency suppliers, whilst also renegotiating terms to reduce risks and costs

BREACHING THE REGULATIONS
Agency workers can claim compensation where they have been denied the terms and conditions granted under the Regulations. The agency worker would be compensated for an amount that an Employment Tribunal considers “just and equitable”, taking into account the loss suffered as a result. Both the agency and hirer will be liable to pay this compensation to the extent they are responsible for the breach of the Regulations.

Any “structure of assignments”, such as placing agency workers on a series of 11 week contracts or varying their roles every few weeks, is prohibited and may also attract additional financial penalty in the form of a fine of up to £5,000. A break of at least 6 weeks between assignments may be necessary to restart the 12 week clock.