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Agency Worker Regulations

Agency Worker Regulations – what do they really mean?

by Jane Middleton from The Middleton Partnership

We’ve heard about them and we’ve no doubt been rather confused by them and now we
hope to provide you with a user-friendly guide to them. We all know how valuable
temporary and contract workers are for UK business as a whole. Employers who use
recruitment agencies to hire staff are responsible for what they do, so they must be sure the
agency acts appropriately and in accordance with its equality and diversity policies.

Agency workers are classed as “workers” rather than as employees. To be clear, all so-called
“workers”, including agency workers, are already entitled to the following rights:

  • Paid annual leave, rest breaks and limits on working time, National Minimum Wage,
    no unlawful deductions from wages, discrimination rights under the Equality Act 2010
    & Health and safety at work.

So……what has changed with the arrival of the Agency Worker Regulations 2010 which
came into force on 1 October 2011? These new regulations give agency workers the
entitlement to the same or no less favorable treatment as comparable employees with
respect to basic employment and working conditions, if and when they complete a
qualifying period of 12 weeks in a particular job for a company.

Who is covered by the regulations? The regulations cover agency workers supplied by a
temporary work agency to a hirer.
This includes most agency workers that are often referred
to as ‘temps’. To establish who has a right in these regulations, the agency worker needs to
be able to identify a comparator someone who does a similar job to them, and that they
can compare themselves to.

Who is not covered by the regulations? The regulations don’t cover the genuinely self-employed, individuals working through their own limited liability company, or individuals
working on managed service contracts.

What rights do agency workers now have?
The new regulations allow an agency worker to be entitled to the following things from Day

  • the same access to facilities such as staff canteens, childcare (i.e.: on-site crèche
    facilities) and transport as a comparable employee of the hirer

to be informed about job vacancies that might be available in the company.
In addition, after a 12-week qualifying period, an agency worker is now entitled to the same
basic conditions of employment as if they had been directly employed by the hirer on the day
one of the assignments, specifically:

Pay: including any bonus, commission, or holiday pay relating to the assignment (however this
does not include redundancy pay, contractual sick pay, and maternity, paternity or
adoption pay)

Working time rights: including any annual leave over and above what is required by law.

Agency Workers (regardless of their employment status) will also be entitled to paid time off
to attend ante-natal appointments during their working hours.

Does the 12-week qualifying period have to be continuous? No, it doesn’t – any breaks
between or during an assignment in the same job that is less than 6 weeks in length will
simply pause the accrual of the 12-week qualifying period. Most breaks between or during
an assignment to the same job that is 6 weeks or more will reset the 12-week qualifying

The actual of 12-week qualifying period can be paused by:

  • absences for sickness and jury service (for up to 28 weeks)
  • annual leave, shutdowns (e.g. factory closures & school holidays) and industrial
    action (for the duration of the absence).

However, pregnancy and maternity-related absences, maternity leave, paternity leave and adoption leave will not pause the 12-week accrual at all – instead the12-week accrual period will continue throughout the duration of the absence and include these weeks as those counting towards the 12-week total.

What if you have an agency worker who is working on more than one assignment? If an agency worker is working on more than one assignment then the agency worker will have two or more accrual periods. So what this means is that if you have agency worker with assignment A and assignment B, they would need to work for 12 weeks on assignment A before their rights apply to assignment A and 12 weeks on assignment B before their rights apply to assignment B. The regulations require that a new assignment would need to comprise ‘substantively different work or duties’ for the qualifying period to start again.

What is a ‘comparative employee’? The regulations aim to ensure an agency worker is engaged on the same relevant terms and conditions as a “comparable employee”. In other words, “what terms and conditions would the agency worker have got if they had been directly recruited into the role?” An employee is a ‘comparable employee’ if at the time of an alleged breach of the regulations:

  • Both employee and agency worker are working for and under the supervision and
    the direction of the hirer
  • Both employee and agency worker are engaged in the same or broadly similar work
    (this could involve an examination of qualifications and skills in the workplace)
  • The employee works or is based at the same establishment as the agency worker.
    (The employee can work or be based at a different establishment but only where
    such an employee cannot be found working or based at the same establishment).

The Agency Workers Directive came into force on 1st October 2011 and the main principle of
the directive is to give equal treatment to someone who has been with the hirer for 12
continuous weeks in a given job
. Agency workers are now entitled to at least the basic
working and employment conditions such as pay and working time which are equal to the
hirer’s own employees. So its overall aim is to make working conditions fairer and more
equitable for those agency workers who are essential to the smooth running of our businesses
– surely that has be a good thing? …..watch this space.

Full guidance on the Agency Workers Regulations can be found in the Department for
Business, Innovation and Skills website.

Jane Middleton is the founding partner of The Middleton Partnership – an independent
Human Resources consultancy focussed on providing best practice support and advice to
smaller businesses. Jane set up The Middleton Partnership in January 2011 having spent 17
years working in senior HR business partner roles for Citi, Cazenove, and JPMorgan.
email her at jane@themiddletonpartnership.com, talk to her at 07900-250782, or find out
more information about The Middleton Partnership by visiting www.themiddletonpartnership.com

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