1. Which staff do the Regulations cover?
If you have staff who are employed by or through an agency working in your business under your supervision, they will be covered. Their contract is with the agency.
Staff who were supplied by an agency initially but are employed directly by you are not covered, nor are ‘temp-to-perm’ arrangements.
If you have staff who are provided through a personal services company or ‘umbrella’ company as ‘contractors’ they may well be covered as well. If you have staff working in this way, contact me to discuss whether they are affected and what you need to do about it.
2. Why were the Regulations introduced?
It’s all about equal pay and equal treatment. For quite a while now fixed-term or part-time workers have had protection against receiving lower pay or less favourable treatment, and the Agency Workers Regulations are another step in the same direction. Agency staff will be entitled to equal pay and equal treatment on basic terms and conditions of employment.
3. Which terms and conditions will be covered?
‘Pay’ for the purposes of the Regulations includes basic pay, bonuses paid as a direct result of productivity or quality of work, holiday pay and other benefits with a monetary value like luncheon vouchers. Non-cash rewards like a company car or health insurance aren’t included.
You also don’t have to pay maternity pay, enhanced sick pay, redundancy pay or profit-related pay. The basic idea is that an agency worker wouldn’t get payments a permanent employee wouldn’t have received if employed for the same length of time.
4. What if an agency worker becomes pregnant?
A pregnant agency worker will have the same rights as your permanent staff during her pregnancy. This means she will get paid time off for ante-natal appointments, will need a risk assessment and has the right to have adjustments made for health and safety reasons. If adjustments can’t be made the agency will be responsible for either finding her alternative work or putting her on paid leave.
5. What do I do if there are benefits it’s just not possible to provide to agency workers?
If you can objectively justify not providing a benefit to agency workers don’t worry, you can enhance their pay slightly instead, to ensure their terms and conditions overall are not less favourable.
6. How soon after joining us is the worker entitled to this protection?
Some of it starts from day one. They must have access to what’s called ‘collective facilities and amenities’ straightaway, meaning for example a canteen or similar, plus access to job vacancies. Adjustments for pregnant women also apply from day one.
The other rights only apply once the worker has been with you in the same job for at least 12 weeks continuously. It doesn’t matter how many hours a week they’ve worked, or how many days in a week. Once they get to the 12 week stage they must get the same pay and other benefits as a permanent employee would if they had been employed for 12 weeks.
7. If I just change the job they are doing or not use them for a week, can I avoid it that way?
No you can’t. A change of role must be to a ‘substantially different’ job, and if they go back to their original job within 6 weeks, time spent at the original job will count. So you can’t chop and change jobs to get round it.
You can’t just stop using them briefly either. If they return within 6 weeks to the original or similar role, the previous time will count. If they are away for longer than 6 weeks, time previously spent still might count if the reason for the break was illness, maternity leave or jury service. If you shut down operations for a time affecting all your staff, then a longer break is allowed for that as well.
8. So how can I manage the Regulations?
There aren’t any easy ways round it. The whole point of the Regulations is to ‘catch’ businesses which are using agency workers for extended periods of time in order to avoid the expense and responsibility of employing workers directly. So if you are doing that, you need to stop.
Only use agency workers for short periods of time to cover urgent absences. Don’t use them instead of permanent/longer-term staff. If you need longer cover, try to use existing staff or employ someone on a fixed-term contract.
9. Who’s liable if there’s a problem, my business or the agency?
The good news is that responsibility lies primarily with the agency. However if the agency has taken ‘reasonable steps’ to get information from you, is reliant on information provided by you and that turns out to be false or misleading, then you as the ‘end user’ will be solely liable. A tribunal will be allowed to apportion liability based on the extent of the breach.
If the breach is not allowing an agency worker access to those rights which should be available from day one, then the ‘end user’ will be completely liable.
10. If an agency worker has a complaint, will they be allowed to use our grievance procedure?
No they won’t. If they think they are being treated unequally or there’s a benefit they are not getting they will be entitled to request written information about it from the agency (who will request it from you). The agency gets 28 days to respond. If they don’t respond promptly, the worker may then ask you directly.
If they still believe there is a problem, the agency worker can bring a claim in the employment tribunal within three months. Compensation will be limited to actual financial loss incurred, but there may also be a £5,000 penalty against either you or the agency if you’ve taken some unlawful action to try to avoid your responsibilities.