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David Malamatenios

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Agency workers: looking less attractive

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The Government has published detailed guidance on the Agency Workers Regulations 2010 (“the Regulations”) which are due to become law on 1st October 2011.



During the recession many employers have taken advantage of the greater flexibility and cheaper costs associated with agency workers on short term temporary contracts. However, after the Agency Workers Regulations become law in October. Agency workers, or at least those who are going to be retained for longer than 12 weeks, might not seem such an attractive option.

HR professionals will already be aware that the Regulations will provide that those workers who have been retained for longer than 12 weeks will be entitled to the same working and employment conditions as a full time employee who has been undertaking the same role.

This is obviously going to increase the cost of agency workers to employers. We have all been anticipating that the implementation of the Regulations will also throw up a lot of practical issues and questions. For instance, what HR systems will employers have to operate to ensure that they are aware of the approach of the 12 week period of a temporary worker (an employer might wish to terminate the agency worker before the 12 week period in order to avoid having to grant equal pay and conditions.

Once these systems are in place are there any legal implications for those hiring the agents and/or the agencies if they rotate temporary workers on the eve of the 12 week period so as to avoid liability. The guidance issues by the government gives some answers.

It is now clear that an agency worker will have the right during an assignment to be informed by the hirer of any relevant vacant posts with the hirer so as to the give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer. This is comparable to the duty to advise potentially redundancy employees of any suitable vacancies.

There is also the question of who is going to be liable for any breach of the Regulations. Regulation 14 states that the agency will only be liable up to the extent that it is responsible for that breach. Subject to that, in most cases, liability is going to fall on the shoulders of the hirer.

An agency worker may bring a claim for unfair dismissal if they are dismissed for the purposes of evading liability under the legislation so this will prevent the practice referred to above, of deliberately terminating and hiring a different agency worker on the even of the 12 week deadline.

It is also worth noting that in calculating the 12 week qualifying period, breaks between assignments or during an assignment will not break continuity if they are not for more than six weeks or for a number of specified reasons (sickness, injury, pregnancy, childbirth, maternity, adoption or paternity leave).

Clearly the Regulations are going to have considerable bite and correspondingly great financial impact on those that regularly use agency workers and also result in an increased bureaucratic burden. Many employers may wish to consider alternatives to using agency workers. They are not as attractive an option as they were previously.


David Malamatenios is Employment Partner at
www.colmancoyle.com

4 Responses

  1. Irregular Workers

    Mattofleeds

    Many hirers are going to have requirements such as yours. In such cases the workers are unlikely to aquire rights. But you need to be aware of the anti-avoidance provisions in Regulation 9. Broadly, if a structure of assignments develops over a period of time which is intened to prevent the worker from aquiring equal rights  then a Tribunal can order the hirer to pay compensation plus an additional award of £5,000. This is obviously what you want to avoid.

    The emphasis here is on "intended to prevent". Obviously there is no case law on this yet but I would think that as a minimum there would need to be clear evidence of a regular pattern of hiring and firing with intent to avoid the provisions. The question then becomes – how do you safeguard yourself from claims of this nature arising?

    My advice would to be clear and consistent in your hiring practices. It has to be made clear to workers what the duration of the hire is going to be and why the hire is for this limited duration and not longer. A workers signature to a document confirming this would be evidence that the worker understands the terms of the hire and could be used against them if they subsequently raise a claim. Ensuring the worker understands the limited nature of the hire and ensuring that the end of the hire is for a proper commercial reason will be key.

     

     

  2. Mattofleeds

    Mattofleeds

    Apologies for the delayed response but I will contact the author and see if they can help with your query.

    Thanks for commenting, I’m sure you’re not alone in your issue there.

    You can always post a query like this on our ‘Any Answers’ section too and see if anyone else has any ideas.

    Hope this helps.

    Kind regards

    Charlie Duff

    Editor

  3. Irregular workers

    My company uses agency staff on certain busy days throughout the year, but very irregularly. There might be 4 days in one month and then nothing for three months, and the days and times vary. There is no continuity to employment as such, it is simply on demand and probably only adds up to at the very most 100 hours PER ANNUM. I do not request the same staff but inevitably some will remain the same throughout the year. Do agency staff qualify under these circumstances under the new legislation? I am finding it difficult to discover this through the guidance notes or any other source. Unlike our agencies we do not differentiate pay according to age and so there are some issues if we do fall under this legislation.

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Thank you.