New Rights for Temps

On 1 October 2011, the long awaited Agency Workers Regulations 2010 will come into force giving certain equal treatment rights to qualifying Agency Workers.

In essence, there are three parties to an agency relationship:

• the Agency Worker (commonly known as “Temps”)
• the Agency that supplies the Worker; and
• the Hirers that use Agency Workers within their businesses.

The aim of the Regulations is to provide certain Agency Workers with the same basic working and employment conditions as if they had been employed directly by the Hirer.

Importantly, the aim is not to give Agency Workers employment status; in most cases the Agency Worker’s employer will continue to be the Agency, rather than the Hirer.

What are the rights?

From Day 1 of the assignment

From the very first day of the Agency Worker’s assignment, the Hirer must ensure that the Agency Worker is as able as the Hirer’s employees and other workers to access:

• communal facilities (such as canteen, crèches, transport and staff parking); and
• information on job vacancies at the same establishment.

There are some exclusions; these include access to off-site facilities such as a gym, facilities, subsidies for the staff canteen or staff discounts.

The Hirer can only refuse access to communal facilities and/or job vacancies, if they can objectively justify it. This means they need a very good practical or business reason for treating the Agency Worker less favourably. Cost alone is unlikely to be an acceptable objective justification.

After 12 weeks’ continuous employment

Once the Agency Worker has worked in the same job for the same Hirer for 12 continuous weeks regardless of the number of hours worked each week, they are entitled to the same basic working and employment conditions as apply generally to the Hirer’s other staff.

This means that qualifying Agency Workers will be entitled to equal treatment with regard, for instance, to pay, annual leave, working time, night work, rest breaks and paid leave for antenatal care as if they had been engaged directly by the Hirer. Pay does not only cover basic salary; it also includes overtime, shift allowances and in some cases, bonus or commission payments.

There are some specific exclusions, such as access to occupational pensions, sick pay, maternity pay, or notice pay. Health insurance, car allowances and share schemes are also excluded.

The rights are not retrospective. This means that for those Agency Workers already assigned to a particular Hirer, the 12 week period does not start to run until 1 October 2011.

Often, Agency Workers will temp for several different Hirers or Agencies; it is therefore conceivable that the Agency Worker may have two or more 12 week periods running concurrently.

The Regulations provide for various breaks in assignment that will not stop the 12 week period from running. For example, if there is a break in assignment of no more than 6 weeks and the Agency Worker returns to the same role with the same Hirer. Also, certain breaks due to sick leave, jury service and maternity, paternity or adoption leave.

Agency Workers do not become entitled to employee rights. So for instance an Agency Worker on assignment for one year would not have the right not to be unfairly dismissed by the Hirer. However, Agency Workers do have the right not to suffer a detriment on certain “prescribed grounds”, which could include having their assignment terminated because they asserted their statutory right to equal treatment.

What if employers do not comply with the Regulations?

The Regulations contain some anti-avoidance provisions designed to prevent employers from deliberately structuring assignments so that they always fall below the 12 week qualifying threshold. Employers face an additional penalty of £5,000 for trying to avoid the Regulations in this way.

Agency Workers have the right to bring a claim in the Employment Tribunal for a breach of the Regulations.

For further information on this article, or any other employment issue, please contact Pritti Bajaria by email on pritti.bajaria@cwj.co.uk or by telephone 01689 887 846.