The Agency Worker Regulations 2010, which have now been in place for over six months, are an attempt to ensure consistency across the EU in the treatment of temps. However, they have prompted a great deal of comment, some of which has been more provocative than accurate. Here I attempt to redress the balance.
British companies have relied for many years on a flexible temporary workforce supplied by employment agencies to fill gaps caused by sickness, holidays, unexpected peaks in workloads and vacancies. Broadly these arrangements have been mutually beneficial – although, as with anything, there have been a few exceptions where temps have been exploited.
Agency workers must be allowed access from day one to the collective facilities and amenities you offer to a comparable member of staff. This includes things such as the canteen, staff recreational facilities, transport, showers, changing facilities, car park, onsite nursery etc. Where there is a waiting list for any of these things you need only ensure that temporary employees’ names are added to it for fair consideration at a time when they come to the top.
From day one temporary workers should be advised of any job vacancies at the site they are working at and should be allowed to apply for them. The most common way of bringing this to the attention of all staff is the noticeboard and you do not need to do any more than ensure that agency workers/temp are aware that you advertise vacancies in this manner or in any other ways.
If temporary workers stay with you longer than 12 weeks, they become entitled to the same contractual rights as permanent members of staff. After 12 weeks’ service they become eligible for the same overtime, shift allowances and bonus payments relating to individual performance or productivity, breaks and rest periods, hours of work, meal allowances and annual leave provided for comparable permanent staff members. This calculation is not pro-rated for part-time staff, so if some of them work only one or two days a week for 12 weeks, they also qualify.
Redundancy pay, contractual sick pay, maternity, paternity and adoption pay, loans and non-cash benefits are excluded. The agency employing the temp has the responsibility for any such payments. It is important to discuss with the agencies your terms and conditions and salary levels. This will ensure they can pay the temp the appropriate rate for your business and they are aware of your other terms of employment. While the law states that this should apply only after 12 weeks, it would be good practice to ensure the agency pays the appropriate rate from day one where this is possible.
The 12-week qualifying period cannot be broken by a short absence of a few weeks for holidays or a period of sickness. If this is more than six weeks the clock is reset when the temporary returns, but if the absence was due to maternity, paternity or adoption leave continuity is preserved.
These regulations are well written and it would be pretty tricky for employers to unintentionally misapply them. There are clear indications about when and how the continuity of the qualifying period is broken. For instance, the following do not break continuity of employment:
- Breaks of six weeks or less between contracts;
- Sickness absence of up to 26 weeks;
- Time off relating to a statutory or contractual entitlement e.g. maternity, paternity, adoption leave etc;
- Strikes or lock-out.
Similarly, more than two assignments with the hirer (in the same or different roles) are likely to be regarded by an Employment Tribunal as continuity of employment.
So for employers it is not worth taking the risk of misapplication. The costs of doing so are high and your business will suffer from adverse publicity in any Tribunal case. Employment Tribunals can award compensation for any losses incurred by the agency worker for less favourable treatment. And an additional £5,000 can be awarded for each affected worker where it considered an employer has tried to avoid the regulations – and that could seriously add up.
Tara is an expert HR adviser and keeps our labour-intensive business up to date with written policies and procedures and provides practical day-to-day advice to line managers. Since engaging Calibre HR & Training we have had no worries in this important business area.
