HR Alert: New rights for agency workers

PRACTICES who employ agency workers will have to abide by new laws from October 1, 2011.

The new Agency Workers Regulations will give these staff members the right to equal treatment after 12 weeks on an assignment.

They will be entitled to the same treatment as other employees when it comes to matters such as overtime pay, annual leave and performance-related bonuses. However they will not be entitled to benefits such as occupational sick pay and redundancy payments.

The regulations will cover those who are assigned to temporary work for a company but are employed directly by an employment agency. The rules will not apply to employment agencies who undertake the search for permanent work for individuals.

There is a band of people who are not covered by the regulations:

• Self employed (e.g. locums, hygienists)

• Those hired under their own personal service organisation

• Those hired under a managed service

Once the agency worker has been in the same role for 12 continuous calendar weeks, regardless of how many hours or days are worked each week, they will qualify for equal treatment. It does not matter whether he or she has completed the 12 weeks in a single or a number of assignments and whether it is through the same or different agencies.

A gap of six calendar weeks or less between assignments will not break continuity. So, for example, if an agency worker is on an assignment at a practice for 10 weeks, then has four weeks where he is not working, before returning to the same job, he will be entitled to equal treatment two weeks into the second assignment.

Companies should not be seen to try and “game” the system by terminating and re-employing.

These breaks between or during an assignment will simply pause the accrual of the 12-week qualifying period. Only breaks of six weeks or more will reset the 12-week qualifying period. A worker has to be assigned to a genuine new role for the qualifying period to start again.

Equal treatment relates to “the same basic working and employment conditions” as they would have received had they been recruited directly by the practice to do a particular job. These are:

• Basic pay

• Overtime pay

• Shift/unsocial hours allowances

• Payments of hazardous duties

• Annual leave

• Bonus/commission related to the amount /quality of an individual’s work

• Discretionary payments

• Vouchers/stamps that have a monetary value, e.g. luncheon or childcare vouchers Any qualifying conditions that apply to permanent staff for any of the above will also be applicable to the agency worker.

Conditions that are not included are:

• Occupational sick pay

• Occupational pension (although agency workers will be affected by the new automatic pension enrolment due in October 2012)

• Occupational maternity/paternity/adoption pay

• Redundancy payments

• Payments linked to financial participation schemes, e.g. profit share

• Bonuses not linked to individual performance, e.g. long-term service rewards

• Payment for statutory time off, e.g. for trade union duties

• Guarantee payments during short time working/lay-off situations

• Advances/employee loans

• Accommodation or travel expenses

• Payments that fall outside the employment relationship, for example private health/car allowance (but any vouchers with monetary value will be covered as per above)

When the agency worker achieves the 12-week qualifying period, the equal terms will be applicable from the start of that time period. This means that any subsequent enhancements given to other employees within the 12 weeks, such as increases in annual leave or pay, will need to be applied to the agency worker too.

However, the regulations do stipulate that with regards to annual leave, it is possible for any leave above the statutory 5.6 weeks to be dealt with as a one-off payment or to be ‘rolled up’ into the agency worker’s hourly or daily rate.

In order to qualify, the agency worker needs to be in the same role with the same hirer for 12-continuous weeks during one or more assignments. Even if only part of a week is worked, it will still count as a week. If the agency worker is already assigned to a role, the qualifying period will not start until the regulations come into effect on October 1.

Agency workers will also be entitled to use facilities from the first day they are employed. These include access to facilities and amenities, such as canteen facilities, childcare services, transport services, car parking, prayer room and mother and baby room. If any of these facilities require permanent employees to join a waiting list, this is also applicable to the agency worker.

Agency workers should also be informed of any vacancies from day one. There is no need to personally inform each worker but information via a notice board or intranet site, would be sufficient.

Guidance on the new regulations can be found on the Department for Business Innovation & Skills (BIS) website. For further details on any of the above, you can contact our HR and employment law team on 0845 270 2034 or by email at employmentlaw@mddus.com