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Do I really need to know about the Agency Workers Regulations?

August 15, 2011

Okay – so there are these new regulations coming into force, and they affect pretty much every business in the UK, but they look a bit boring and I don’t really need to know about them, right?

 It is really very tempting to ignore the Agency Workers Regulations. They really do not seem very interesting, and they aren’t as easy to read as Harry Potter. In any case you might not use agency workers, or you might think that the temping agencies will have it covered.

I would be inclined to agree with you, but unfortunately there are two rather annoying factors which mean that you really should know about these regulations:

  1. Even if you don’t think you use any “temps”, you might still be engaging workers who are covered by the regulations; and
  2. Even if the temping agencies have it covered (and most of them probably do), that does not mean that you will benefit from their knowledge.

So, what do you really need to know? Because you sure as hell don’t want to read the regulations or even the BIS guidance….

 … I have set out below some key points and tips, so you can spend some time with your loved ones or having a beer, rather than pouring through the regulations and making your eyes bleed.

Who is covered?

Broadly and simply, an agency worker is someone who is supplied by an agency to work temporarily under supervision or direction of you (the hirer/employer). The regulations cover any such relationship;

  • Whether or not you (the hirer) pay the agency, is completely irrelevant to the application of the regulations;
  • Just because someone is working under the umbrella of a limited company (which they may be doing for tax purposes) does not mean that they will not be caught by the regulations;
  • If you employ them directly (either temporarily or permanently) so that they have a personal contract with you (rather than the agency), then they are not an “agency worker” under the regs;
  • Where the you or the agency are the client or the customer of the worker in the course of their profession or business undertaking, then they are not an “agency worker”;

What is the effect?

From day 1 – access to the same facilities as your direct employees;

  • From day 1 – access to the same information relating to job vacancies as your direct employees;
    • But – They are not entitled to equal treatment through the application process (ie. you can favour your direct employees through the selection of candidates at any stage of the application process).
  • From 12 weeks – entitled to same basic terms compared with your direct employees, relating to: Key elements of pay; duration of working, rest breaks and arrangements for night work; annual leave;
    • But – Pay does not include: Occupation sick pay, maternity pay, pensions, share options, financial participation schemes, car allowances, long service bonuses (and various other forms of remuneration which would make the list too long).
  • From 12 weeks – Paid time off for ante-natal care (once pregnancy has been notified, except for the first appointment of course)

When will it kick in?

  • The Regulations will take effect from 1 October 2011;
  • Day 1 rights will be effective immediately;
  • 12 week entitlements, will only apply 12 weeks later (ie. 12 weeks after 1 October, because the regulations do not apply retrospectively);
  • 12 weeks does not always mean 12 weeks, because there are circumstances when the accrual of time is paused during a break in work, or is deemed to have been completed even though the worker has not been engaged for 12 weeks;
  • Don’t bother trying to be clever – Anti-avoidance provisions mean that any attempt to creatively avoid the application of the regulations will result in you being caught out.

Who is liable if we get it wrong?

Very simply…

  • You are liable for breach of day 1 entitlements (over which the agency has no control);
  • Entitlements after 12 weeks:
    • Agency is primarily liable for breach of entitlements after 12 weeks; unless
      • it has taken reasonable steps to obtain relevant information from you; and
      • it has acted reasonably in determining conditions after 12 weeks in light of that information; and
      • Where responsible for applying those conditions, it ensures that they have been applied.
      • You are liable for breach of entitlements after 12 weeks, if the agency can establish that it has complied with the requirements set out above.
      • You are each (you and the agency) liable for your own deliberate act or failure to act
      • But – the truth is that, because it is their business, the agency will probably be on top of this (and may even have included indemnities in their terms of business) so in all likelihood it will be you that is liable for any breach

Top Tip

This article is not about practical steps, but is about highlighting the key implications of the Agency Workers Regulations. However, having said that, there are two really obvious practical steps you take to make things easier for yourself:

  1. Get your house in order. Ensure that your internal processes are fit for purpose, and rationalise the way in which you use agency staff (eg: by ensuring that it all comes through a single point of contact in your business);
  2. Consolidate your relationship with the agencies you use. Only use agencies that you trust, and co-operate with those agencies in order to put in place an effective and consistent way of working, which works for both of you.

 

And on the off chance that you do want to make your eyes bleed – you can start learning more about the Agency Workers Regulations here – http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf

Have you had any interesting ideas about how to react to these regulations? If so, please share them by leaving a comment.

 

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