New Agency Worker Regulations Set For 2011

Wednesday, 9th June 2010

From October 2011 new Agency Worker Regulations will be enforced across the UK, altering the process of recruitment and rights for the thousands of agency workers currently employed or hoping for new opportunities.

Enforced by the government to comply with the EU Temporary Workers Directive, the changes will apply to those “workers with a contract of employment, or employment relationship with a temporary work agency, who are assigned to work temporarily under their supervision and direction”.

With a wealth of amendments on the horizon, the following article will give an in-depth look to some of the most relevant and hopefully prepare agency workers and employers for the road ahead.

The Right to Equal Treatment:

In general terms, agency workers will be granted the same rights as their full-time colleagues upon serving 12 weeks in continuous employment with a given organisation.

The right to equal treatment means that agency workers will be treated as if they had been recruited directly into the same job as a permanent employee. They are entitled to “the same basic working and employment conditions” available to “comparable employees”, full time colleagues performing similar roles.

Such conditions include:

  • Those laid down by existing employment legislation and regulations.
  • Working hours, including breaks and overtime.
  • Holidays.
  • Pay.

12 Week Qualifying Period:

All changes will depend on agency workers passing a 12 week qualifying period, but several stipulations could affect this, including:

  • If the agency worker starts a new assignment for the same hirer this breaks the 12 week period. But, the new assignment must be ‘substantively different’ to work already being performed.
  • There must be a break of at least 6 calendar weeks between assignments for the qualifying period to start again.
  • Time taken for sick or annual leave pauses the 12 week qualifying period, but weeks accrued before still stand.
  • Workers continue towards the 12 week period when off work for pregnancy, contractual maternity, paternity and adoption leave.

Changes to Pay:

According to the amendments, pay includes “any sums payable to a worker of the hirer in connection with the worker's employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under contract or otherwise but excluding any payments or rewards”.

This will include basic pay plus contractual entitlements whilst the agency worker is on the job, with holiday pay, overtime, shift allowances, unsocial hours and individual performance bonuses and lunch and transport vouchers all equal to permanent colleagues.

But some of the incentives and rewards that a permanent employee is entitled to are not covered by the regulations including some bonuses, occupational pensions, occupational sick pay and some financial participation schemes.

Agency workers may not be entitled to contractual notice pay, contractual redundancy pay and benefits in kind such as company car allowances or health insurance, but will welcome the regulations, which again bring pay in line with their comparable employees.

Taking Employment Action:

Those considering taking legal action against their employers or agency will be given a number of avenues to complain.

After the 12 week qualifying period both the agency and the individual hirer can be held responsible for any breaches if the worker is being treated unequally to a similar colleague.

However the agency is only liable to the extent that they are “responsible for the infringement” and have a defence if “reasonable steps” were taken to ensure equal working conditions.


Tribunal Claims:

According to Regulation 18(2), agency workers will be able to bring tribunal claims for breach of the right to equal treatment after the 12-week qualifying period, while the time limit for presenting claims to a tribunal will usually be three months from the date of the infringement or detriment.

Employment tribunals will be able to make a declaration, order compensation or make recommendations for action to be taken if the evidence proves that an agency worker’s newly established rights have been violated.

Compensation payable will be a "just and equitable" amount taking into account the extent of a worker’s responsibility including the nature of the breach, financial loss suffered and any expenses reasonably incurred.

When Problems Arise:

Such wholesale to agency workers’ employment rights will rightly catch some employees and their managers off guard.

Employers should be aware of how future changes may impact their business practices and educate themselves on how the numerous provisions will affect their recruitment drives.

Agency workers, to ensure that new regulations are kept in mind during your employment, whilst resolving any issues that may arise, approach your local employment law experts and fully exercise your newly formed rights as an agency worker.

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