Recap: Agency Workers’ Rights from 1st October 2011

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Many employers find agency workers to be a valuable resource to temporarily fill gaps without having to go through a lengthy recruitment process. The agency actually employs the temporary workers and employers know that qualifications, experience and eligibility to work in the UK have been checked out by the agency, and it’s easy to terminate when they are no longer required. The Government has sought to address the lack of protection afforded to agency workers with the Agency Worker Regulations which came into force on 1st October, giving agency workers the right to the same basic employment and working conditions as if they had been directly employed by the Company. The clock starts ticking on 1st October, 2011 and once an agency worker has worked in the same role for 12 weeks (25th December), they will be entitled to the same basic working and employment conditions as if they had been recruited directly by the hirer. Also, from their first day, they must have equal access to facilities and permanent employment opportunities. Equal treatment can be measured against comparable employees in terms of pay, length of working time, night working, holidays, rest period and breaks, pay for bank and public holidays, shift allowances, overtime rates and premiums for working unsociable hours. Specific provision is also made for pregnant agency workers to be given paid time off for antenatal appointments and for alternative work or pay to be provided if they are unable to continue with an assignment for health and safety reasons. The twelve-week qualification period requires the workers to be in the same role with the same hirer. Continuity is only broken if a new assignment with the same employer is substantially different or there is a break of six calendar weeks during assignments in the same role. Hirers must inform all temporary workers of any relevant vacancies from day one, together with giving them access to collective facilities and amenities such as the staff canteen, childcare facilities, parking and provision of transport services. The direct cost of providing equal treatment to agency workers will fall onto the employment agencies rather than the hiring company but it’s likely that agencies will seek to pass on these costs to the hiring company in the rates charged for their temporary workers. Many employers are concerned about the additional costs, estimated at £2bn a year, and burden upon them, so what can they do?
  • Do nothing, and just accept that this is how it is and accept the additional costs
  • Make sure that temporary roles do not exceed 12 weeks
  • Stop using agency workers altogether
  • Increase overtime to their existing staff
  • Employ a bank of zero-hours workers on contracts that do not guarantee a minimum number of hours and so they can be used whenever the Company has a need
Employers should be careful not to repeatedly lay-off agency workers after 11 weeks, even with a break of six weeks before they are re-employed, as if a pattern emerged of a company only having 11-week jobs, then an individual could take them to a tribunal where fines of up to £5,000 may be awarded.

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