On 1^st October 2011, the Agency Workers Regulations 2011 came into force. This document summarises what the Regulations mean to you as a hirer of agency workers.

The Regulations have been brought in to comply with a European Directive and are intended to protect vulnerable agency workers by providing them with broadly similar basic working conditions as they would have received, had they been recruited directly by the hirer.

DAY 1 RIGHTS – you should ensure that Agency Workers have the same access to collective facilities and amenities, as a comparable worker (usually your employee), which includes, in particular, canteen or other similar facilities, child care facilities, and transport services, as well as access to information on job vacancies.

12 WEEK RIGHTS - an agency worker who has worked for you, in the same role, for 12 weeks, is entitled to the same pay (including certain bonuses); duration of working time, night work, rest periods, rest breaks and annual leave, as they would have received had they been recruited directly by you, in that role, at the start of the assignment.  If there is someone working directly for you, doing broadly the same job (a comparable worker) that is a good indicator of the agency worker’s entitlement.  Indeed, this part of the regulations is deemed to be complied with if the agency worker has the same entitlements as that comparable worker.

Obviously, it is the agency that pays the worker, so you will need to provide the agency with information concerning the items in the above paragraph.  The agency will liaise with you to ensure they have sufficient information to enable the worker to be paid at the correct rate.

Some agency workers may have a permanent employment contract with an agency (or an umbrella company) and receive pay between assignments. This is known as a “Swedish Derogation” or “Pay Between Assignments” contract. In these cases, the worker is not entitled to the same pay but all other aspects of the Regulations apply.

The Regulations DO NOT APPLY, at all, to workers who have a direct contract with you, or are not supplied temporarily or who are not working under your supervision or direction. Nor do they apply to workers who operate their own business where the agency is a client of that business.  You will only be aware of this if the agency tells you but, you may decide to still provide such workers with ‘Day 1’ entitlements, since differentiating between them and other similar agency workers may be impractical.

Breaches of the regulations could lead to a claim from the worker against either the agency or you (or both) to an employment tribunal for compensation. Penalties (up to £5,000) can also be levied if the Tribunal decides there has been deliberate avoidance of the Regulations.

This is a very brief summary of the Regulations as they apply to a hirer. Please contact us if you require any further information or clarification on the above.