|
The Agency Workers Regulations 2011 saw agency workers benefit from new rights in the workplace to bring them into line with other staff as of 1 October. This will have significant implications for employers as they update their hiring practices and adjust their conditions accordingly.
The new rules require employers to match the pay and basic working and employment conditions of agency workers with full time staff after 12 weeks of service. These rules cover workers who find work through any agency. However, self employed contractors, staff from in-house temporary staffing banks and secondees are not subject to the new rules.
Day 1
While the widest focus has been on rights due to agency workers after 12 weeks, the new rules confer certain rights from day one of their employment and this has to be considered by hiring firms.
From the first day of employment, agency staff must be provided with access to job vacancies in line with the access offered to permanent staff. This can be accommodated through displayed vacancies in public areas and on a firm’s intranet.
However, while access to vacancies must be provided, this does not prevent firms from processing the application subject to qualifications or other requirements. If an agency staff is unqualified for an advertised position, there is no expectation on the company to interview the applicant despite this.
There is also no requirement to provide equal access to vacancies for jobs created during an internal reorganisation.
From day one , firms are also required to provide agency staff with access to facilities and amenities such as car parking, transport services, canteen, common room, mother/baby room, prayer room, food and drinks machines and toilet or shower facilities.
Week 12
Following these rights from day one, further key rights come into force from week twelve.
Agency workers must be provided with terms and conditions equivalent to a permanent member of staff. This will require firms to ensure that their basic pay, holiday pay, overtime and bonuses are aligned with normal practice for equivalent roles within the company.
Agency workers will benefit from limits to working time. So if other staff are protected from working 48 hours per week, agency staff will be as well.
Agency staff will also benefit from rights to annual leave or pay relating to night work, rest periods or breaks, and paid time off for antenatal appointments.
It should be noted that these rights are based on those of a comparable employee doing the same job or broadly similar work. Usually this will be someone at the same workplace, but sometimes will be located elsewhere.
Pay
Regarding pay, firms should be aware that where the regulations relate to pay, this includes more than basic salary.
The rules cover basic pay, overtime payment, payment for annual leave (where it is above the statutory entitlement) and bonuses or commissions that are directly attributable to the amount and quality of work done.
Bonuses linked to personal performance or non-contractual payments that are made with such regularity that they are a matter of custom and practice are also covered. Vouchers with a monetary value that can be exchanged for goods and services are also covered. This may apply to things like luncheon vouchers and child care vouchers, but does not include salary sacrifice schemes.
It is worth noting, however, that where the eligibility for payment requires staff to reach a period of service, the worker will need to achieve that period of service to become eligible, the same as someone directly recruited. As such, where a payment is available to permanent staff only after twelve months of service, then it is also only available to the agency worker after twelve months of service.
Exceptions on pay
The rules include a number of exceptions on pay equality that companies must know about.
Flat rate bonuses paid to the workforce to encourage loyalty and reward long service are not included under the new rules. Neither are occupational schemes such as sick pay, maternity, paternity and adoption pay, though an agency worker may be entitled to statutory payments via their agency.
Agency workers will be covered by the new automatic pension enrolment that is to be phased in from October 2012, rather than by the rights in the Agency Workers Regulations 2011.
Exceptions are also made for redundancy and notice pay, payment for time off for trade union duties and advances for things like travel season tickets. The majority of benefits in kind are also excluded. These might be reduced-rate mortgages or employer funded training allowances, though benefits with monetary value are included in pay.
Agency staff will also not be entitled to the same guarantee payments that may apply to directly recruited staff being laid off, or to payments or rewards linked to financial participation schemes such as share ownership.
Qualifying periods
Time spent on an assignment before 1 October 2011 does not count towards the qualifying period, but the entitlement after twelve weeks applies whether the agency worker works full or part time. This means that an agency worker that works one day per week, for 12 weeks, would qualify for the rights in the legislation.
If the agency worker changes agency during their time with the company, this does not alter their qualification under the rules. Six weeks with one agency, and six weeks with another agency, but all twelve weeks in the same position, would qualify as 12 weeks of service.
Time on annual leave does not count towards the twelve weeks. However, it does not reset the twelve week qualifying period either. In effect annual leave pauses the clock. Only an absence of six weeks or more would break the qualifying period and so reset the clock.
Responsibility for compliance
Responsibility for ensuring compliance with the Regulations mainly lies with employment agencies who can request information from employers.
Workers who believe they are not receiving their entitlements under the Regulations can request a written statement from their agency. If this statement is not provided within 30 days, the worker can make a request for the information directly to the employer.
Compensation
Where a case comes to deciding compensation, there is a minimum award of two weeks’ pay with no maximum award set in law.
The figure set will be decided on the basis of actual loss suffered by the agency worker, or at an appropriate level of compensation in cases such as an agency worker denied access to facilities.
From week 12, basic terms and conditions including:
Holiday pay, overtime and bonuses linked to performance
Duration of working time
Annual leave
Night work
Rest periods or breaks
Paid time off for antenatal appointments
Payments covered by the new rules:
Basic pay
Overtime payments
Payment for annual leave
Bonuses or commission payments
Vouchers with a monetary value that can be exchanged for money, goods or services
|