Agency Workers Rights
With effect from October 2011 the way agency workers are treated will change. Agency workers will be entitled to the same basic empoyment and working conditions as those who are directly employed by the hiring Company – including being notified of job vacancies that may arise within the organization.
The self-employed, those working through their own limited company and agency workers supplied through a managed service contract are specifically excluded from protection of the Agency Workers Regulations 2010.
After completing 12 weeks in the same job (or a substantively similar job), an agency worker will be entitled to the same basic terms and conditions as the hirer’s employees in relation to pay, working time and annual leave. Pregnant temporary agency workers will also have additional rights.
In cases where an agency worker changes agency but the hiring company remains the same, his or her rights will not be affected.
There may be occasions where the agency worker has a break within the period of work that will not automatically break the 12 week qualifying period. In these circumstances he or she will resume accumulating service on return from the break. These include:
-
breaks between assignments of not more than six weeks;
-
jury service of up to 28 weeks;
-
sickness absence of up to 28 weeks;
-
annual leave;
-
business closure (eg pre-determined factory closure); and
-
industrial action
What the Rights Will Be
There will be a number of rights that will apply from day one of the engagement which will include:
-
access to the same facilities that the hiring company’s comparable employees can access unless the Company has objective justification for refusing access. Examples of the types of facilities would be canteens, crèches, gyms and transport
-
to be given the same opportunity to apply for relevant internal and external vacancies as the hiring company’s comparable employees (unless the vacancy is the result of restructuring)
-
not to suffer a detriment for asserting rights under the Agency Workers Regulations
Following the completion of a 12-week qualifying period, agency workers will be entitled to the same basic working and employment conditions as a comparator working for the hiring company including:
-
pay (inc Company Sick Pay, fees, commission, over time, shift allowance, performance based bonuses, vouchers)
-
working time duration
-
night work
-
rest periods
-
rest breaks and
-
contractual annual leave
It is important to note that there is little prospect for the hiring company or agencies to try and play the system by attempting to structure assignments so as to avoid the effect of the Regulations. Where a tribunal finds that either the hiring company or the agency sought to avoid liability through the structure of assignments, the tribunal can make an additional award of up to £5,000 compensation to the agency worker on top of any other award they receive.