Agency Workers Regulations 2010
The Regulations came into force on 1 October 2011 andintroduce 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 toperformance and, from day one, access to job vacancies and communalfacilities e.g. canteen, childcare facilities and transportservices to include a bus between sites.
The Regulations do not apply to the genuinely self-employed,bonus payments for loyalty or long service, occupational pensionsor sick pay, or financial participation schemes.
If the worker`s role changes and if the worker moves to agenuinely different role, one where all or most of the duties aresubstantively different, the right to equal treatment will onlybegin once he has had twelve weeks in the newrole.
In general, a break between assignments will reset the clockto day one on the proviso that the break is for at least six weeks.Some absences, for example sick leave, jury service and annualholiday will also pause the clock.
The most frequently asked question is whether an employercan limit the use of agency workers to assignments of less thantwelve weeks to avoid the impact of the Regulations. In generalterms, the answer is yes, however, the hirer will need to avoid astructure or series of assignments which could be deemed to be anattempt to avoid the impact of the Regulations.
The anti-avoidance Regulations will bite where the agencyworker has
- completed two or more assignments with thehirer
- completed one or more assignments with the hirer and oneor more earlier assignments with hirers connected to that hirer;or
- worked in more than two roles during an assignment and hadat least two previous changes of role
The length of an assignment and the gap between them will bea deciding factor.
Penalties are potentially severe with employers liable for apenalty of up to £5,000 per agency worker and an additional penaltyof up to £5,000 so employers will need to monitor the use of agencyworkers and keep detailed records.
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.