Under the new Agency Workers Regulations, which come into force from October 1, 2011, temps will be entitled to certain benefits from their very first day, equal to permanent staff. Equal rights would include, for example, access to the staff canteen, crèche, and car parking; and they will also be entitled to information about any vacancies within the business.
While the Agency Workers Regulations changes are already on the radar of many SMEs, it is easy to get caught out. The implications of the Agency Workers Regulations are far reaching if you do not keep your office in order.
Avoid the fine
These new rights will certainly have cost implications, both for businesses and for recruitment agencies.
Non-compliance carries a penalty. Deliberate attempts to avoid the Agency Workers Regulations regulations carry a fine of £5,000. Temps can bring Employment Tribunal claims for any breach in which case the compensation payable is unlimited.
Entitlements for temps
After 12 weeks in the same job with the same hirer, temps will be entitled to the same basic conditions as if they had been directly recruited by the hirer.
This includes pay, overtime, bonuses attributable to personal performance and holiday pay. Temps will not be entitled to receive occupational sick pay, occupational maternity pay, redundancy pay, private health insurance or most other benefits in kind, such as those provided through salary sacrifice schemes.
Are you liable?
The right to equal treatment raises an interesting question – who should be liable, the agency or the hirer?
When it comes to temps not being given their “day one rights” the hirer will have sole responsibility for this breach. Businesses which hire temps should consider summarising the “day one rights” in an induction pack provided at the start of the assignment.
Any breach regarding equal treatment will be the liability of the agency. However, if the agency takes reasonable steps to obtain information from the hirer regarding the conditions in force at the hirer’s workplace, and the hirer fails to adequately provide these conditions, then the hirer will be liable.
This is crucial when it comes to sharing information with the agency regarding your staff basic working and employment conditions.
Recruitment agencies may need to educate their clients as to what information is required.
Know the rules
Many temps sign up to more than one agency, and hirers should be aware that the 12 weeks qualifying period will be accrued if the temp is supplied to them by more than one agency (as long as they perform the same role).
Do your research
Companies must carry out a health and safety risk assessment for pregnant temps and inform the agency if they are no longer able to carry out the original assignment.
The agency must then look for suitable alternative work and, if none can be found, pay the temp until the end of the assignment.
Don’t get caught out
Businesses which use large numbers of temps may wish to ask the agency to consider a “derogation contract”.
This is a permanent contract between the temp and the agency. The obligation is then on the agency to find work for the temp and to pay them in between assignments.
Provided specific conditions are met, the temp will then not be entitled to the same pay from the hirer as permanent staff.
What should you do?
For now, companies should review which of their temps are likely to work on assignments longer than 12 weeks and to review the information they are required to share with the agency.
Make sure you are fully prepared for when the regulations come into place, so you avoid getting caught out.
James Wilders is a partner at Dickinson Dees LLP.
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