Guidance Notes: The Agency Workers Regulations 2010.

June 2011

Agency Workers Regulations 2010: New Guidance Notes

The Agency Workers Regulations 2010 (the Regulations) will come into force on 1 October 2011, and will have an impact upon businesses that make use of temporary staff. The Regulations apply to businesses in England, Wales and Scotland. The Regulations only extend to businesses in Northern Ireland in terms of the need to supply information on their use of agency workers on a transfer of undertakings, the formation of a European Cooperative Society, and/or on a merger.

Simply-docs has created a succinct set of Guidance Notes for Employers: The Agency Workers Regulations 2010, which are ideal for helping businesses navigate their way round the Regulations. The Guidance Notes are based on the guidance produced by Department for Business Innovation and Skills (BIS).

The changes mean that agency workers will have the rights to the same basic terms and conditions as permanent staff after a 12-week qualifying period in the same job role with the same hirer.

These include the same basic rights regarding:

● Pay
● Benefits
● Duration of work
● Night work
● Rest breaks
● Annual leave

Businesses should compare agency workers with employees doing the same or “broadly similar” work to come up with the correct rate to pay the agency worker.

The Regulations will affect temporary work agencies supplying temporary workers, who will need to ask the hirer for information about pay and basic working conditions (when it is clear that the agency worker will be in the same job with the same hirer for more than 12 weeks) so that they are treated as if they had been directly recruited to the job. The Regulations will also affect the hirers of temporary staff, who will need to work out the comparable terms and conditions of the agency worker, and ensure that these provisions are applied to the agency worker. Individuals who are supplied as temporary workers by a temporary work agency to work for a hirer will also be affected, as they will gain new rights.

In addition, under the Regulations, there will be a requirement for employers to give specific information during collective redundancy, TUPE (transfers of undertakings) transfers and some other statutory consultations, such as under the Information and Consultation of Employees Regulations. When providing written information to worker representatives for consultation purposes, hirers must give information on the use of agency workers, including:

• the total number of agency workers engaged to work temporarily for the employer,
• the areas of the employer’s business in which they are working and
• the type of work they are contracted to undertake.

The Guidance Notes for Employers: The Agency Workers Regulations 2010 set out how the 12 week qualifying period is calculated. The guidance also covers liability issues for the temporary work agency and the hirer, who are both potentially liable to the agency worker for a minimum of two weeks’ equal pay if a tribunal finds that equal treatment has not been applied to the agency worker.

The Regulations do not come into force until October, which gives businesses the time they need to prepare for the changes.

Before 1 October, businesses (hirers) should:

• Consider whether their dependence on agency workers should or could be reduced by, for instance, directly employing staff or contracting with genuinely self-employed workers;
• Look at working exclusively with one or two chosen recruitment consultancies in order to minimise administration;
• Ensure staff (and in particular line managers) are aware of the Regulations and know that from 1 October 2011 they will need to provide accurate information on basic pay and working conditions to any agency through which temporary workers are supplied;
• Set up systems to disclose information to agencies on pay and holidays for comparator employees;
• consider the average length of their temporary assignments currently so as to ensure awareness of the proportion of temporary workforce that is likely to acquire 12 week rights.

Before the changes come into force in October 2011, Simply-docs will update the employment contracts relevant to agency workers, and documents and policies where there will be an impact on the information required during consultation process.

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.

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