An Introduction

Agency workers are a great way to gain access to skills and expertise you need for your business on an ad hoc basis. What’s more, it used to be that when you chose an agency worker to carry out certain tasks for your company that you could wash your hands of pretty much all of your normal employer responsibilities. However, since the introduction of Agency Workers Regulations on 1st October 2011, agency workers benefit from a whole host of basic working and employment conditions that did not apply previously. In a nutshell, agency workers now have the same rights as permanent employees after a period of 12 consecutive weeks of carrying out the same task for the same client (or employer/hirer). While the majority of the ramifications of this change will be managed by the agency placing your staff, it’s worth being aware of the effect of this new regulation on your arrangements with agency staff.

Agency workers have long been a real boost to the workforce, bringing skills and expertise that may be lacking within the organisation, or carrying out tasks that don’t warrant an employee. One of the big attractions of hiring agency staff prior to the recent changes was the fact that employer’s were able to employ these workers purely on a “needs” basis without worrying too much about broad employment conditions. Any agency placing a member of staff now needs to be aware of the potential for increased responsibilities, and therefore increased costs if, and when this legislation kicks in (ie. after the 12th consecutive week of carrying out the same job for the same employer). There is little doubt that these changes will have impacted on agency costs and that any increased costs will ultimately be passed on to the end user.

Growing desire and pressure for fairness in recent years is what has brought about this change, enabling agency workers to benefit, after 12 consecutive weeks of carrying out the same work for the same client, the same working conditions as permanent staff. The early part of this development brought about the agency worker’s right to the national minimum wage; a working week capped at 48 hours, and the right to holiday pay, but more recent developments have extended these rights even further. Now for example, from day one, an agency worker has the same right to the use of employee facilities and access to job opportunities as any other member of the workforce.

So what are the things to be aware of if you decide, or need to employ agency staff for more than 12 consecutive weeks?

  1. At a very basic level, these workers have the same pay; working time; rest breaks and annual leave rights as permanent employees.
  2. Agency workers must be allowed access to the same facilities (staff restaurant, gym, etc) as permanent workers and must also be made aware of job opportunities that arise from day 1 of their contract.
  3. If an agency worker has a permanent contract of employment with a temp agency which states that they should receive payment when they are available to work, but they are not placed in work, they will be entitled to receive 50% of the highest level of pay they previously received. Although this falls within the agency’s responsibilities, it’s well worth being aware of.
  4. Agency workers who are not treated fairly under the regulations can claim compensation from both the client and the agency they’re registered with.

And, if all this is making you think…”In the light of these requirements, it might be best to keep an agency worker for only 11 weeks and then change”…Beware! There are anti-avoidance measures in place to protect agency workers against this sort of rotation. Such avoidance could give rise of a tribunal compensation award of up to £5000 that appears to become the responsibility of the agency and the employer!

To find out more about how we could help your business call our Recruitment team on 0845 606 9632, or email us at s.hutchison@uhy-uk.com.