Agency workers' rights explained
Agency workers are used as a valuable resource for employers to fill the gaps temporarily without having to go through a cumbersome recruitment process.
The organisation has the comfort of knowing that the individual's qualifications, expertise and right to work have been checked out by the agency, and the worker's services can be easily dispensed with when they are no longer needed.
The lack of protection afforded to agency workers has been controversial, and parliament has sought to address the unsatisfactory position in which those workers have found themselves.
Now the Agency Worker Regulations have now come into force. They give agency workers the right to the same basic employment and working conditions as if they had been recruited directly by a company.
An agency worker is someone who provides work or services to an organisation, but is contracted via an agency rather than the organisation itself.
Over recent years, agency workers have been able to benefit from the national minimum wage, paid holiday and the right not to work more than 48 hours a week on average.
The Agency Workers Regulations are a further significant step in enhancing agency workers' rights.
This means that after 12 weeks, basic working and employment conditions for temporary agency workers are no less favourable than if they had been recruited direct by the hirer.
Also, from day one, they have equal access to facilities and permanent employment opportunities.
The regulations do not confer employee status on agency workers, and they will not therefore have the right to claim, for example, unfair dismissal, minimum notice or redundancy pay.
Employers need to take note that the regulations envisage that equal treatment can be measured against comparable employees in terms of pay, the duration of working time, night work, rest period and breaks, annual leave, pay for bank and public holidays, shift allowances, overtime rates and unsociable hours premiums.
Specific provision is made in the regulations for pregnant agency workers to have paid time off for antenatal appointments, and for alternative work, or pay, to be provided where they are unable to continue with an assignment for health and safety reasons.
Employers will take some comfort in that the right to equal treatment does not apply until the agency worker has completed the necessary qualifying period of 12 continuous calendar weeks, during one or more assignments, in the same role with the same hirer.
Continuity is only broken in circumstances where a new assignment with the same employer is substantially different or there is a break of six calendar weeks during assignments in the same job.
In addition to basic employment conditions, the agency worker has the right, during an assignment, to be informed by the hirer of any relevant vacant posts with the hirer.
Essentially this gives the agency worker the same right as a current employee to know of any internal vacancies. This is an automatic right from day one of the agency worker being placed, and no qualifying period applies.
Other day one rights include equal access to collective facilities and amenities. This may include access to a staff canteen or other similar facilities, childcare facilities, and the provision of transport services.
While the direct cost of providing equal treatment to agency workers will fall on the employment agencies rather than the hirer, agencies may seek to pass on these costs to end-users in the rates charged for their workers.
They may also wish to obtain more information from the hirer at the outset about the working conditions in force.
Employers could react in the following way:
- Accept the additional costs
- Ensure that agency workers do not meet the 12 week qualifying period
- Stop using agency workers
- Bring agency workers in-house
- Increase overtime to existing staff
- Use casual or zero hour workers - in other words, employ someone on a contract that does not guarantee a minimum number of hours so they can be used as and when required
Guidance on the regulations for both employers and workers has been provided by the Department for Business.
This has been developed as a result of collaboration with key organisations including employment agencies, employers, trade unions and representative bodies.
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