Only four months to go before the Agency Workers Regulations come into force on 1 October! Time to panic? No! Time to read our handy five step guide!
The retail sector has a particular interest in these regulations as a sector with one of the largest use of agency workers throughout industry. The Agency Workers Regulations give agency workers the right to the same pay and basic conditions as employees. Some rights apply from day one, and others after 12 weeks, so the Regulations do introduce some significant changes.
However, with proper systems in place, hirers of agency workers should be able to adapt relatively easily. The government has produced a guidance note (running to 51 pages), but if you feel that might be a bit much, we have put together a brief survival guide – if you use agency workers, these are the things you need to know!
1. Before enforcing the Regulations, make sure you are dealing with i) an agency worker, and ii) that the agency worker has a comparator i.e. someone employed directly by the employer, doing the same job as the agency worker.
An agency worker is someone who:
- is supplied by a temporary work agency; and
- works temporarily for and under the supervision and direction of a hirer; and
- has a contract with the temporary work agency.
The Regulations do not cover the genuinely self-employed – so if you are in any doubt as to whether a worker is self-employed or not, check this before falling foul of the Regulations.
2. Check agency workers have equal access to day 1 rights
The Regulations give agency workers some rights on day one of the job. These are:
- access to facilities (such as car parking, canteen, crèche etc); and
- access to information about job vacancies.
3. Check everything is in place for the rights that accrue after 12 weeks
Most rights are triggered by working in the same job with the same hirer for 12 calendar weeks. These include:
- Pay;
- Holiday;
- Hours/rest breaks; and
- Night work.
4. Keep good records
The Regulations depend on timescales so keeping records of:
- The accrual of the 12 week period (including any breaks or pauses that the Regulations recognise); and
- the job(s) the agency worker is doing
will be absolutely key.
5. Don't breach them!
An agency worker can bring a claim in the employment tribunal to enforce their rights under the Regulations and there are various anti-avoidance provisions in place, including a fine of up to £5,000.
There is nothing to stop you from reducing your obligations by making a policy decision to employ agency workers for 11 weeks, then releasing them, but if there is a pattern – for example you employ two employees for 11 weeks, then swap their roles, then 11 weeks later swap them back again, a regulator would probably get suspicious!
The contents of this brochure are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions.
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