employment law

What businesses need to know about Agency Workers Regulations

Do you use agency workers in your business?

Then you need to know about the regulations that protect them. Unless you know them, you run the risk of falling foul to them.

Working relationships

Normally the relationship between the recruitment firm (the agency) and the agency worker is that of ‘employer and worker’. Sometimes, it can be that of ‘employer and employee’.

In these two instances, contracts will exist between the recruitment firm and the agency worker, and also between the recruitment firm and your business.

In some circumstances, you might have a contract directly with the agency worker. This means the worker will be seen as your employee.

Rights of agency workers

Agency workers are entitled to several statutory protections, including:

• paid holidays;
• rest breaks and limits on working time;
• the national minimum wage;
• and discrimination under the equality legislation.

They may also be entitled to statutory sick pay, but will not be entitled to ma-ternity or paternity leave. They are not entitled to statutory maternity pay but may be entitled to maternity allowance or pay on maternity grounds.

If you use an agency worker and your business goes through a restructure, making their role redundant, they will not be entitled to redundancy pay.

Agency Workers Regulations

Since October 2011, some agency workers have additional rights under the Agency Workers Regulations 2010.

Some of the rights you need to be aware of include:

• Agency workers should not be treated any less favourably than a comparable worker employed directly by you in regards to the facilities and amenities they can access
• You should inform agency workers of any relevant permanent vacancies within the company and give them the same opportunity as a comparable worker to find permanent employment within your organisation
• Once they have worked 12 weeks in the same role, they should have the same basic working and employment conditions as employees hired directly by you.

A complex matter

While this guide offers you a snapshot of agency workers’ rights, there are far too many complex clauses to outline fully here.

As well as rules relating to pay, bonuses and sick pay, there are specific rules for pregnant workers and new mothers, as well as for parental leave and flexible working.

The rules will also differ depending on how long the worker has been with you. There are ‘day one rights’ and additional rights after they have been working for 12 weeks.

As an employer, you should also be careful not to fall foul of anti-avoidance rules appling when you take on the same agency worker for a second or subsequent time in the same role. In these instances, you may need clarification of what counts as ‘continuity of employment’.

How we can help

If you use agency workers, you may find it difficult to know which rules apply and who is or isn’t covered by the regulations.

Getting it wrong can lead to claims being made to the employment tribunal, which can be costly.

To help, we can provide specific information and advice about agency work-ers’ rights.

Please contact our employment lawyers via Daniel Zakis on 0121 705 7571 or email him at danielzakis@wallacerobinson.co.uk.

This article is for general information purposes only. It does not constitute technical, financial, legal advice or any other type of professional advice and is no substitute for specific advice based on your individual circumstances. We do not accept responsibility or liability for any actions taken based on the information in this article. For more information, please click here.