Agency workers – the day of reckoning approaches

The Government has recently published guidance here on the Agency Workers Regulations which are due to come into force on 1 October 2011.

These Regulations are expected to result in a big shake up of how agency workers are used in organisations and for agency worker suppliers. The regulations do not apply to pure recruitment consultancies which place individuals into permanent roles with third parties.

The Regulations provide for:

• Equal access of agency workers to facilities and to information relating to job vacancies from Day 1 of an assignment; and
• Equal treatment for agency workers after they have been on one assignment for 12 weeks. The 12 week period is based on 12 calendar weeks from the day the assignment commences and calendar weeks accrue irrespective of the number of hours worked that week.

The 12 week lead in period was agreed between the www.cbi.org.uk and www.tuc.org.uk and is considered by the Government as a key to retain flexibility in the labour market.

Equal treatment means that agency workers have the right to the same basic terms and conditions of employment including:

• Pay;
• Duration of working time (i.e. where working time is limited to 48 hours per week);
• Rest periods;
• Rest breaks;
• Annual leave; and
• Paid time off for ante-natal appointments

Equal treatment does not extend to all terms and conditions, so for example agency workers will not have the same rights to occupational sick pay and occupational pensions.

The obligation to provide equal treatment is on the end user of agency workers and not the agency through which workers are engaged.

The Regulations do not change the employment status of agency workers and therefore, they will not create an employment relationship between the end user and the agency worker. There is some uncertainty of the effect on contractors, typically in the IT and related areas. However, it is expected that they will generally fall outside the scope of the regulations because, according to the guidance “the definition of an agency worker excludes those who are in a ‘profession or business undertaking carried out by the individual’ where the hirer is a client or customer of the individual (ie a genuine business to business relationship).”

Organisations have had considerably warning about the Regulations and time to consider the issues and what impact they are likely to have on their business. Any organisations which have not done so should start now so that they will not face any nasty shocks in October.