Wake-up call – Do you know what rights agency workers have?

25 November 2011
Wake-up call – Do you know what rights agency workers have?

http://www.xperthr.co.uk/small-business-hr/home" target="_blank" rel="noreferrer">XpertHR Small Business](http://www.xperthr.co.uk/small-business-hr/home) - a service run by Caterer and Hotelkeepere_SSRqs sister website, XpertHR - explains your responsibilities with regard to the Agency Workers Regulations

When did the Agency Workers Regulations 2010 come into force and what effect do they have? The regulations came into force on 1 October 2011. They give agency workers certain rights from their first day on an assignment and further rights after a 12-week qualifying period.

Which rights do agency workers have from the first day of an assignment with a hiring employer? The first right is the right to be treated no less favourably than the hirer's comparable employees and workers in relation to collective facilities and amenities provided by the hirer, unless the hirer can objectively justify this.

The second is the right to be informed by the hirer of any relevant vacant posts that it has available, to give agency workers the same opportunity as a directly comparable employed worker to find permanent employment with the hirer. This can be via a "general announcement in a suitable place", such as a noticeboard or the hirer's intranet.

What does "collective facilities and amenities" mean? It will be different for different employers depending on what they offer. However, it would include such facilities as a workplace canteen, a creche, car parking, and transport to and from the workplace.

So, for example, if an employer provides a mini-bus service picking up and dropping off its employees at the nearest station, it would have to extend that facility to agency workers.

What rights do agency workers have after the 12-week qualifying period? To complete the qualifying period agency workers must work in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments.

They are then entitled to the same basic working and employment conditions to which they would have been entitled had they been directly recruited for the same job by the hirer.

What do we mean by "basic working and employment conditions"? This means terms and conditions relating to pay, working time, night work, rest periods, rest breaks and annual leave. Pay means any sums payable to a worker of the hirer in connection with the worker's employment.

It includes any fee, bonus, commission, holiday pay or other emolument referable to the employment. But it does not include things such as occupational sick pay, redundancy payments and any bonus that is "not directly attributable to the amount or quality of the work done".

So, if the employer's workers have the opportunity to earn a bonus for achieving a certain number of sales, agency workers also have to be given that opportunity, but a bonus for long service does not have to be extended to them.

If the agency worker is assigned to a new role, does the qualifying period start again? Yes. However, for a role to be "new", two conditions must be fulfilled. First, the main work or duties of the new role must be "substantively different". Second, the agency must have informed the agency worker - in writing - of the type of work the agency worker will be required to do in the new role.

If there is a gap between assignments in the same role will continuity be broken? Not necessarily. Certain breaks during or between assignments will actually just pause the clock, and the temp will resume accumulating the 12 weeks' service on return from the break. The first of these is a break for any reason at all for no more than six weeks.

Other breaks that will pause the clock include sick leave of up to 28 weeks, jury service of up to 28 weeks and time off related to pregnancy or maternity. In addition, where the worker is absent for the latter reason, she is treated as actually working for the purposes of the qualifying period for the original intended duration of the assignment or the likely intended duration of the assignment - whichever is longer.

Does a temp have to work five days a week over 12 weeks to gain the qualifying service? No. Any week during which the agency worker works on the assignment is counted as a week.

For example, if an agency worker works for one day a week on an assignment, after 12 weeks he or she will have completed the qualifying period. But no service prior to 1 October 2011 counts, so it will be mid-December before anyone has completed the 12-week qualifying period.

[XpertHR Small Businessis the easy-to-use online resource specially tailored to small-and medium-sized businesses, which gives you simple, up-to-date guidance on all employment law and staff issue

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