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Do you use agency workers?
From October 1st 2011 the new Agency Worker Regulations will come into force. This will have a major effect on the pay and working conditions of agency temps. It will give such workers rights to the same pay and working time conditions as comparable permanent workers employed directly by an organisation once the agency workers have been on an assignment for 12 weeks. They will also have some other rights from the first day.

If you use agency workers this means that you will need to provide up-to-date information on your basic working and employment conditions for staff to the supplying agency so that it can ensure that workers receive the correct treatment after 12 weeks. The basic terms comprise key elements of pay; overtime rates; production bonuses or directly attributable commission payments; shift allowances; and annual leave entitlements etc. However, they do not include payments such as enhanced occupational sick pay or occupational maternity, paternity or adoption pay (the regulations do not affect an agency worker’s statutory entitlements.) They also do not include items such as advances in pay or loans (e.g. for season tickets); redundancy pay; notice pay; loyalty bonuses; or membership of share ownership schemes.

In addition to the above rights on pay and employment conditions, from the first day of an assignment agency workers will also be entitled to access to certain collective facilities as provided by the organisation to its permanent employees – for example employer-provided car park, canteen and crèche facilities. This is as well as access to information on relevant job vacancies that comparable permanent workers and employees have. They will not have enhanced rights – simply the same as other permanent employees, so for example they will not get a place for a child at the company crèche if it is full, but they will get the right to join the waiting list on the same basis as your existing employees.

The Regulations take into account the fact that the working patterns of agency workers can be irregular, so they take into account the fact that there can be breaks in an assignment. They deal with this in terms of a “clock” which runs from 0 to 12 weeks. In some cases a gap between an assignment or a move to a new assignment will mean that the clock is reset to zero. In other circumstances a break will halt the clock which will then continue to tick when the worker returns. In some circumstances – e.g. maternity, paternity or adoption leave the clock will continue to tick even if the agency worker is not currently working on the assignment.

A pause in the qualifying period may occur for any reason if the break is no more than six calendar weeks. It also applies, for example, if the agency worker is taking annual leave to which they are entitled or is incapable of working due to sickness or injury (for up to 28 weeks.) It includes breaks caused by regular or planned shutdown (e.g. at Christmas) or if the agency worker is summoned to perform jury service (for up to 28 weeks.) The clock will resume ticking on the worker’s return. Note that if a worker simply changes agency but continues to work on an assignment at the same company with less than a six week break, the clock will restart and will not be reset to zero.

The qualifying period clock is most likely to be reset to zero when the agency worker begins a new assignment with a new hirer or in circumstances where the agency worker has moved to a substantively different role. If there is a break between assignments with the same hirer of six weeks or more, the clock is reset. This is the case as long as the break is not for one of the reasons that would suspend the clock ticking instead.

If you currently use agency temps, any time working for at your organisation will not be counted retrospectively – the clock will start from zero on 1st October 2011, but you should note that there are anti-avoidance provisions such that employment tribunals may consider that companies who have a pattern of using temps for a series of 11 weeks interspersed by six week breaks are deliberately attempting to avoid the regulations.

The way each company uses agency workers is different and there are lots of different aspects to take into account, so if you need help and advice or want to discuss the implications for your business or any aspect of the new Regulations contact us on 01684 594773 or
Posted on 19 Nov 2016

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