Tempting fate: Do the Agency Workers Regulations spell the end for the long-term Temp?
From 1 October 2011, a new set of Regulations will provide equal treatment for agency workers in respect of their fundamental working conditions, in comparison with permanent employees.
Once the agency worker completes a 12-week qualifying period, he or she will be on a par with a comparator (the permanent employee) as if they had been directly recruited by the hirer in relation to certain basic working conditions.
Under the new Regulations, employers need to be aware of the distinction between ‘Day 1 rights’ and ‘rights accrued after 12 weeks’. From the first day of starting an assignment, the agency worker is entitled to ‘access to facilities’ (staff canteen, transport facilities, car parking and child care) and ‘access to vacancies’ (notification of job availability). After an agency worker completes a 12 week qualifying period, they are entitled to ‘relevant terms and conditions’. These include basic working conditions such as: holidays; hours of work; night work; rest periods; breaks and pay (i.e. basic pay, overtime payments and payment for annual leave).
The Department of Business Innovation and Skills has suggested that the total cost of the Regulations to agencies will be between £80-£194m, and the cost to employers between £239-£387m.
With such hefty figures hanging over employers, there is the potential for assignments to be curtailed before the 12 week threshold is reached. The Regulations themselves contain anti-avoidance provisions designed to prevent employers from exploiting this loophole. If an Employment Tribunal can establish that agency workers assignments are being consistently terminated before the 12-week threshold is reached, a penalty of up to £5,000 could be levied against the hirer or agency or split between the parties.
The fate of the long-term temp will be decided on a cost versus benefit basis. Only time will tell whether employers will continue to use agency workers for long term assignments but one thing is for sure, employers need to be fully aware of the implications of the Regulations when taking on temps.
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Tom Moyes
