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More rights for agency workers

08 November 2011

The Agency Workers Regulations came into force on 1 October, giving temporary workers increased rights. They cover temp work agencies, agency workers and hirers/end users.

Some of the rights apply from day one of an assignment; others kick in after 12 weeks with the same hirer in the same job. From day one, the hirer must provide the right to access facilities such as staff canteens, car parking and crèches and the same information on job vacancies as is given to permanent staff.

The right to access facilities does not apply to benefits given directly to employees, for example car allowance or season ticket loans or if there is a good justification not to. Information on job vacancies means informing agency workers where such vacancies are advertised and allowing them access. It does not restrict how the hirer treats applications, for example he can require certain qualifications or levels of experience such as length of service with the organisation, which the agency worker is less likely to have.

After 12 weeks, agency workers are entitled to the same ‘relevant terms and conditions’ they would have received had they been employed directly by the hirer. This means the same basic working conditions regarding pay, working time, annual leave, rest periods and breaks. The definition of pay is extremely detailed but it can include bonus and commission. It does not include occupational sick pay, occupational pension or redundancy pay. There are anti-avoidance measures to prevent hirers repeatedly offering 11 week assignments with the appropriate break between to prevent the worker from acquiring their rights.

The regulations do not make agency workers employees nor give them rights dependent on being an employee. There is also an exemption from the right to the same terms and conditions if the agency worker has a permanent contract of employment with the agency, which states that the worker does not have any entitlement to equal pay under the regulations.

The regulations are detailed and it will be some time before tribunal cases arise to provide guidance on, for example, what is sufficient justification to refuse access to facilities. In the meantime hirers of agency workers should get advice if they are unsure what the regulations mean or how they should be applied.

While we have focused here on the rights for agency workers, hirers should be aware that the regulations oblige them to provide certain information to the agency.

If you need clear and pragmatic legal advice, we’re here to help so please get in touch.

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