human resources
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New Rights for Agency Workers Clare Murray discusses changes which will come about this year due to the Agency Workers Regulations 2010 legislation If your business hires, or is likely to hire, agency workers (to cover, for example, sickness absence, maternity leave or simply an upturn in business activity) you should be aware of various fundamental changes which will come into effect on 1 October 2011, under the Agency Workers Regulations 2010. The Agency Workers Regulations implement European legislation regarding equal treatment for agency workers, who will soon be entitled to at least the same basic working and employment conditions, to which they would have been entitled had they been hired directly as a permanent employee from the start of their assignment. Many of the new rights for agency workers under the Regulations will only apply after a 12-week qualifying period in the same role (whether on one or more assignments), subject to allowances for certain breaks. Extensive anti-avoidance provisions will seek to prevent steps designed to stop agency workers acquiring equal treatment rights. Examples of basic working and employment terms and conditions that must be equalised for agency workers (following the 12-week qualifying period) include working time provisions and pay, which take into account: • b asic pay and performance-related bonuses (though certain other forms of bonus such as profit-sharing or share participation will not be included) • holiday and overtime pay • shift allowances and premiums for unsocial hours or dangerous duties.
Agency workers who are pregnant or nursing will also have increased rights, which include, for example, reasonable paid time off during working hours to attend anti-natal appointments. Hirers must make adjustments to protect an agency worker who is pregnant, has recently given birth or is breastfeeding from identified risks and may need to offer her appropriate alternative work. The equal treatment principle does not extend to contractual notice pay, contractual redundancy pay, occupational sick pay, occupational pensions, or benefits in kind such as health insurance and company car allowances. Some working and employment terms and conditions must be equalised from the beginning of an agency worker’s assignment and these include access to “collective facilities and amenities” such as a staff canteen, childcare facilities and the provision of transport. Agency workers will also have the right to be told of any relevant employment vacancies in the business. If your business hires or is likely to hire agency workers, it is important to start preparing for these changes; staffing and financial implications for your organisation should be assessed as soon as possible. Employment terms and conditions for qualifying agency workers, relevant policies and your staff handbook should also be reviewed and amended as necessary, and care should be taken to ensure that relevant working and employment terms and conditions are equalised at the correct time. HR professionals and other relevant professionals should familiarise themselves with the new rules and you should consider providing training as appropriate. We have yet to see how these regulations will be enforced in practice and how claims will be conducted in the employment tribunal. However, careful and thorough preparations will be essential to minimise the risk of potential liability of both hirers and agencies. n
Clare Murray is Managing Partner at specialist employment and partnership law firm CM Murray LLP. She can be contacted at clare.murray@cm-murray.com or 020 7718 0090. The contents of this column are for general purposes only. Specialist legal advice should be taken regarding specific circumstances.
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