The controversial Agency Workers Regulations 2010 will finally come into force on 1 October 2011. To help you prepare, the government’s official guidance has just been released. So what does it include?
The same basic rights
From 1 October 2011, any agency workers that you employ will:
l be entitled to access your workplace facilities for example, canteen, car parking, crèche and information on any vacancies in your organisation from day one of an assignment
l qualify for "equal treatment" with a "direct hire in an equivalent role" in other words basic employment rights and conditions after 12 weeks in a role; this is regardless of whether they have been supplied by more than one agency for any part of that period.
Agency workers aren’t being given enhanced rights to access workplace facilities. For example, if there is a waiting list for car parking, they can join it, but not jump it: they don’t get priority or any special treatment. Also, they will only qualify for the right to equal treatment if they stay in the same role with the same hirer for the entire 12-week period.
Official guidance available
The government has issued guidance, which explains how to identify basic rights and conditions and covers areas such as:
l the scope of the regulations
l qualifying for equal treatment
l working time and holiday entitlement, and
l pregnant workers.
12-week qualifying period
An area most employers want to know about is which events can break, or pause, the 12-week qualifying period (QP). The guidance says the QP:
l is reset when an agency worker moves to a new hirer in other words, a different legal entity. So if you have multiple sites, moving them from one to another won’t break continuity
l will be broken if there is "any substantive change" to a job with the same hirer the whole, or main, role must be different. Minor changes won’t count: they should be both genuine and significant to the role for example, a new level of responsibility
l will be paused by sickness absence, but any maternity-, paternity- or adoption-related absences keep the clock ticking.
The regulations won’t apply retrospectively, so agency workers already on an assignment when they come into effect won’t get any credit towards a QP before 1 October.
Unfortunately, the guidance doesn’t address some of the more challenging questions. As usual, the tribunal is left to tackle the trickier issues. It also still needs Parliamentary approval. But if you employ agency workers, or plan to do so, start looking at it now.