Several businesses make use of agency workers as part of their workforce. The Agency Workers Regulations 2010 (the Regulations) came into force on 1st October 2011.
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.
An agency worker is defined as:
- An individual who is supplied by a temporary work agency;
- An individual working temporarily under the direction and supervision of an employer (known as a ‘hirer’).
In summary, the Regulations give agency workers:
- The right to access the collective facilities and amenities e.g. canteen, car parking, childcare facilities provided by the hirer and the right to information about vacancies with the hirer. These rights apply from day one of the assignment.
- Equality in respect of basic working and employment conditions (e.g. pay, duration of working time, rest periods, annual leave). These rights apply after 12 weeks on assignment.
The purpose of the Regulations is to try to ensure fairer treatment of agency workers or ‘temps’. This does not mean, however, that agency workers have the same rights as employees. The agency worker will not be entitled to, for instance, make an unfair dismissal claim on termination of an assignment or have the right to statutory minimum notice of termination of an assignment.
In order to be entitled to the rights which accrue after a 12-week qualifying period, the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks. The worker does not have to work in an assignment for a whole week; even if the worker only works for part of a week, this will count as part of completion of 12 continuous weeks. There are certain circumstances where the qualifying period may be suspended e.g. the agency worker going on jury service or a planned shut down of the workplace by the hirer (e.g. at Christmas). Usually, the qualifying period will be broken after a break of at least 6 weeks between assignments with the same hirer.
In addition, under the Regulations, there is 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.