LRD Booklets October 2011

Agency Workers Regulations - a legal guide

Introduction

Trade unions have been concerned about the treatment of agency workers for decades. This is not surprising as agency workers have endured some of the worst employment conditions experienced by individuals in the workplace. This poor treatment has grown in significance across Europe as the proportion of the workforce employed through agencies has increased. At the same time, the existence of a workforce generally employed on less favourable terms and conditions has served to undermine collective bargaining for permanent staff.

A recent YouGov survey commissioned by the TUC indicated that 33% of agency workers receive less pay than permanent staff, with 28% losing out on overtime and unsocial hours pay. The figures are supported by the statistics from the government’s Labour Force Survey which show that temporary workers earn on average 68% less than permanent workers. The YouGov survey also showed that 46% of agency workers receive less holiday entitlement than permanent staff, and again this difference is supported by figures from the Labour Force Survey which show temporary workers receiving five days less holiday per year.)

Persistent pressure and lobbying by UK trade unions finally led the then Labour government to enter into negotiations with other European ruling parties about the problem, which eventually resulted in the Agency Workers Directive being agreed between member states.

An agreement between the Trades Union Congress (TUC) and the Confederation of Business and Industry (CBI) paved the way for this. At the heart of the breakthrough was an agreement that only agency workers with 12 weeks’ service or more, would benefit from the right to equal treatment with permanent workers. The result of this is that while the Agency Workers Regulations 2010 go some way towards improving the working conditions of agency workers in general, the major beneficiaries are agency workers on longer-term contracts.

The regulations are a useful new tool for reps — particularly those fighting to prevent a leveling down of the terms and conditions of permanent staff to those of agency workers. But, as ever, the devil is in the detail. The regulations are multi-layered and consideration must be given to how they can be used most effectively.

TUC general secretary, Brendan Barber, commenting on the regulations said: “These new rights for agency workers are an important step forward in helping the UK’s hundreds of thousands of agency temps get a fairer deal at work. For too long, agency workers have faced discrimination at work. They are frequently paid less, are required to work excessive hours with no overtime pay, and are entitled to less holiday than directly employed workers doing exactly the same job.

“Some rogue employers have used temps to undermine the terms and conditions of existing workforces, replacing permanent staff with agency workers on lower pay, with no security, no training, no sick pay, minimum holidays and no pension provision. But thanks to hard campaigning by unions this is all about to change. Now, after 12 weeks in the same role with the same hirer, the law will require agency temps receive equal pay for the job they do and to receive some of the same rights as permanent staff working alongside them.”

This latest guide from the Labour Research Department has been designed to explain the Agency Workers Regulations 2010 in a clear and comprehensible manner. Relevant legislative references have been included to assist reps, who may be dealing with recalcitrant employers, to give weight to their arguments.

New entitlements for agency workers from 1 October 2011

(Source: Department for Business Innovation and Skills (BIS), Agency Workers Regulations: Guidance)

Day one rights for all agency workers:

If you hire agency workers, you must ensure that they have they can access your facilities (such as canteen, childcare facilities, etc) and can access information on your job vacancies from the first day of their assignment.

After 12 weeks in the same job:

The equal treatment entitlements relate to pay and other basic working conditions (annual leave, rest breaks, etc) and come into effect after an agency worker completes a 12-week qualifying period in the same job with the same hirer. After completing the qualifying period, pregnant agency workers will now be allowed to take paid time off for ante-natal appointments during an assignment.

It is not retrospective and for those agency workers already on assignment, the 12-week qualifying period will start from 1 October 2011.

What this means if you are a hirer of agency workers:

If you are an employer and hire temporary agency workers through a temporary work agency, you should provide your agency with up to date information on your terms and conditions so that they can ensure that an agency worker receives the correct equal treatment, as if they had been recruited directly, after 12 weeks in the same job. You are responsible for ensuring that all agency workers can access your facilities and are able to view information on your job vacancies from the first day of their assignment with you.

What this means if you are a ‘temp’ agency worker:

From 1 October 2011, after you have worked in the same job for 12 weeks, you will qualify for equal treatment in respect of pay and basic working conditions. You can accumulate these weeks even if you only work a few hours a week. Your temporary work agency is likely to ask for details of your work history to help establish when you are entitled to equal treatment (separate guidance is available for agency workers on direct.gov website).

What this means if you are a temporary work agency:

If you are involved in the supply of temporary agency workers, you need to ask the hirer for information about pay and basic working conditions (when it is clear that the agency worker will be in the same job with the same hirer for more than 12 weeks) so that they are treated as if they had been directly recruited to the job.

Source: Department for Business Innovation and Skills (BIS), Agency Workers Regulations: Guidance, available to download at: www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance