Agency Workers Regulations

Gillian Cumming
1st Oct 2011

Today, the Agency Workers Regulations 2010 are in force. The Regulations introduce new rights for agency workers by providing them with the same rights as employees of the organisation hiring them, subject to certain conditions.

From 1 October 2011, once an agency worker has undertaken the same role with the same hirer, on one or more assignments, for 12 continuous weeks, they will be entitled to receive the same basic working and employment conditions that they would have been entitled to receive if they had been directly recruited.

 

The Regulations define ‘relevant terms and conditions’ as including terms and conditions relating to:

  • pay;
  • the duration of working time;
  • night work;
  • rest periods;
  • rest breaks; and
  • annual leave.

 

‘Pay’ is widely defined and will include fees, bonuses, commission and holiday pay. However, occupational sick pay and occupational pension contributions are excluded from the definition of ‘pay’, along with occupational maternity, paternity or adoption pay, redundancy pay, and certain bonuses which are not earned on an individual basis.

 

There are anti-avoidance provisions relating to the 12 week qualifying period (for example a break for any reason of up to 6 weeks will not break continuity).

 

From the start of their assignments, agency workers will also have the right to be treated no less favourably than the hirer’s employees in relation to the collective facilities and amenities provided by the hirer, unless less favourable treatment is objectively justified.

 

The Regulations state that collective facilities and amenities will include:

  • canteen or other similar facilities;
  • child care facilities; and
  • the provision of transport services.

 

The Guidance provided by the Department for Business, Innovation and Skills provides that the following may also be included:

  • toilet/shower facilities;
  • staff common room;
  • waiting room;
  • mother and baby room;
  • prayer room;
  • food and drinks machines; and
  • car parking.

 

Finally, from the start of their assignments, agency workers will have the right to be informed by the hirer of its vacancies during their assignment, in order that they have the same opportunity as the hirer’s employees to find permanent employment with the hirer.

 

Undoubtedly, these Regulations will increase the costs to business of engaging agency workers. Organisations who still require the flexibility offered by agency workers will have to work with the agencies they use to ensure that the Regulations are complied with whilst keeping costs at an acceptable level.

 

Detailed guidance on the Regulations can be found on the BIS website here.

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