Temporary summer staff have rights too

Many in the hospitality and leisure industries will be taking on agency staff throughout the summer to help with big events, particularly with the Olympics and other sporting events.  But if you are planning to engage agency workers to share the load, make sure that you are up to speed with the provisions of the Agency Worker Regulations which came into force in October 2011.  In essence the AWR give agency workers the right to the same basic working conditions as if they had been recruited directly by you.

Who is an agency worker

An agency worker would be, for example, a chef supplied by a temporary work agency to work temporarily for you, under your supervision. They will have a contract of employment with the agency, or contract to perform work on the agency’s behalf.

12 Week Qualifying Period

From 1 October 2011 an agency worker has been entitled to the same basic working and employment conditions that they would be entitled to had they been directly recruited by your business. However, this only applies after they have undertaken the same role (whether on one or more assignments) within your business for a 12 week qualifying period.

The right to equal treatment

Basic working and employment conditions relate to:

• Pay – including basic, overtime, holiday pay, bonuses for individual performance and vouchers with a monetary value, such as childcare vouchers. This does not extend to contractual redundancy payments, sick pay, occupation pension pay, notice pay, loans, expenses, long service rewards and non-contractual bonuses.
• Working time – including night work, rest periods and breaks and contractual annual leave – these must be on comparable terms with a permanent worker.
• Pregnancy – a pregnant agency worker must be given time off to attend antenatal appointments and classes. If they can no longer complete their original duties for health and safety reasons (eg if they are working behind the bar and required to lift heavy crates of drinks), they will need to be allocated alternative work on equal pay. Under existing law, there is an obligation not to discriminate under the Equality Act 2010 and a risk assessment must be carried out, with any necessary adjustments made to remove any indentified risk.

Day one rights

Some rights apply immediately from the start of the assignment:

• Access to any collective facilities that other employees are offered such as child-care facilities, parking or transport services between sites. At this stage they will not be entitled to enhanced rights – eg a place in a crèche which has a waiting list, although they should not be prohibited from joining the list.
• The same opportunity to apply for relevant vacancies as other employees (although they will still need to meet the usual selection criteria).

 AWR  ………. reducing the impact

The AWR have been in force since October 2011.  Many report that the impact has not been as onerous as expected and that the increased costs have been absorbed or avoided.  It is possible to avoid the impact of the Regulations by using workers who are not covered by the AWR, such as the genuinely self-employed, or using short term assignments of less than 12 weeks.  You should be careful to avoid engaging agency workers on repeated short term contracts as this may be perceived as unlawful avoidance of the Regulations for which you may incur a financial penalty (see below).  The use of shorter contracts or a series of contracts will require careful monitoring which you should be aware may be a significant administrative burden.

Penalties for breaching the new laws

If your business breaches its obligations under the new laws an employment tribunal can award compensation, taking into account the agency worker’s losses. A tribunal can also award compensation of up to £5,000 against your business if it decides you have attempted to structure an assignment in order to avoid the qualifying period.