Top 10 questions on the agency workers’ regulations

The flexibility gained through employing agency workers is important in maintaining the competitiveness and efficiency of the UK’s private and public sectors, writes Andy Smith, head of regulation at Adecco, the staffing group.

Agency working also offers advantages and opportunities to individuals – it is a recognised route into long-term employment and helps many combine productive and fulfilling work with family and domestic commitments.

The Agency Worker Regulations (AWR) have been designed to give agency workers the same basic working and employment conditions as directly hired staff after 12 weeks on assignment.

This will have a major effect on how employers use agency workers but research carried out by Adecco found that many HR professionals are still unprepared and even complacent about the impact that the regulations will have on their organisation when they come into force on 1^st October 2011.

Here, I have provided answers to ten of the most frequently asked questions on the AWR:

1.     Does implementing an ’11-week only’ assignment classify as avoidance?

Even if it is deliberate avoidance, simply terminating an agency worker’s assignment before 12 weeks to avoid qualification is not made unlawful by the Regulations.  The anti-avoidance provision in the Regulations is targeted at patterns of engagement intended to deny an individual agency worker equal treatment rights, particularly where a worker has completed two or more assignments with a hirer or has worked in more than one role at the same company.

2.     How does an individual agency worker know what they are entitled to?

Agency workers who have completed the qualifying period will be able to request information from their agency concerning the terms and conditions that are in force for direct employees at the relevant workplace.

3.     Is mileage included as part of equal treatment? What about Flexitime?

The principle of equal treatment does not apply to reimbursement of expenses incurred in carrying out an employee’s work. The Regulations extend the right to equal treatment to terms and conditions concerning the ‘duration of working time’ - there is no reference to flexitime or similar schemes.

4.     Is redundancy affected in terms of notice period?

There will be no requirement under the Regulations to give any period of notice or redundancy pay.

5.     What if an agency worker is off sick and misses a communication about internal vacancies?

The Regulations are designed to ensure a right to the same access as a comparable worker.  If a comparable worker who is off sick wouldn’t be informed, then it may be that the same treatment of an agency worker would be considered to be ‘equal’.

6.     What about annual leave – will this impact wedding day leave, moving day leave, study leave?

The regulations refer to annual leave - it would seem unlikely that these examples would fit the definition of an annual entitlement.  

7.     What is the impact of an agency worker who is a PAYE versus a contractor who is essentially a sole trader?

The effect of the Regulations is to exclude from scope only the genuinely self-employed who provide business or professional services to clients. Agencies are not able to engage with sole traders without paying them net of tax.

8.     If a worker completes two or more separate assignments with the same hirer, do they qualify?

Any break of less than 6 weeks doesn’t affect an agency worker’s benefits. For example, if they were to work for 15 weeks, then go on leave for 5 weeks, then come back, they would still be qualified for equal benefit as an equivalent employee.

9.     What about moving temps into different roles within the same ‘job family’ – for example, if an accounts payable temp moves into an accounts receivable or  other accounting function? How would this be treated in a tribunal?

To be treated as a new ‘role’ for the purpose of qualification, the new position has to be ‘substantively’ different in terms of the core functions of the job.

10.  If an agency worker is on a higher salary than a client’s permanent staff, do they have to default to the lower salary post-12 weeks?

The Regulations will have no effect if agency worker’s pay is more generous. There is no requirement to ‘equalise down’.