It is common practice within the hospitality industry to use agency workers for bar and waiting staff, front of house, or in catering or domestic roles to provide cover at busy times. Whether you use agency workers intermittently or regularly, 1 October 2011 is a date which should be earmarked in your diary as this is when the Agency Worker Regulations come into force.

In summary, this gives agency workers 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, as opposed to being recruited into a permanent position, 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.

The right to equal treatment
From 1 October 2011 an agency worker will be entitled to the same basic working and employment conditions that they would have been entitled to had they been directly recruited by your business. 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.

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 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.

How to calculate the qualifying period
The qualifying period starts on 1 October 2011 and accrues on a weekly basis, regardless of the hours the worker works in each week.

If there is a break of at least 6 calendar weeks between assignments or the work starts a substantively different role in the business (eg moving from food preparation in the kitchen to a book keeping role) then continuity will be broken and an agency worker will have to start their 12-week qualifying period again.

Continuity will continue to accrue, however, where a break is due to pregnancy, childbirth or maternity leave, for up to 26 weeks after childbirth. This also applies to paternity or adoption leave. Some periods away from work will merely suspend continuity (neither counting towards continuity nor breaking it), for example, sickness absence of up to 28 weeks or jury service of up to 28 weeks.

A worker who changes agency during an assignment will continue to accrue service with your business.

Day one rights
Note that after October, some rights apply immediately from the start of their 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).

What are the 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.

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.