Agency Workers Regulations 2010

The Regulations came into force on 1 October 2011 and introduce new rights for agency workers, including the right to `equal treatment` in respect of certain "basic working conditions" as permanent staff after a 12 week qualifying period.

The Regulations cover the following:-

Annual leave, basic pay, rest breaks, bonuses linked to performance and, from day one, access to job vacancies and communal facilities e.g. canteen, childcare facilities and transport services to include a bus between sites.

The Regulations do not apply to the genuinely self-employed, bonus payments for loyalty or long service, occupational pensions or sick pay, or financial participation schemes.

If the worker`s role changes and if the worker moves to a genuinely different role, one where all or most of the duties are substantively different, the right to equal treatment will only begin once he has had twelve weeks in the new role. 

In general, a break between assignments will reset the clock to day one on the proviso that the break is for at least six weeks. Some absences, for example sick leave, jury service and annual holiday will also pause the clock. 

The most frequently asked question is whether an employer can limit the use of agency workers to assignments of less than twelve weeks to avoid the impact of the Regulations. In general terms, the answer is yes, however, the hirer will need to avoid a structure or series of assignments which could be deemed to be an attempt to avoid the impact of the Regulations.

The anti-avoidance Regulations will bite where the agency worker has 

- completed two or more assignments with the hirer

- completed one or more assignments with the hirer and one or more earlier assignments with hirers connected to that hirer; or

- worked in more than two roles during an assignment and had at least two previous changes of role

The length of an assignment and the gap between them will be a deciding factor.

Penalties are potentially severe with employers liable for a penalty of up to £5,000 per agency worker and an additional penalty of up to £5,000 so employers will need to monitor the use of agency workers and keep detailed records. 

Posted on: 20/10/2011

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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