Agency Workers Regulations: Get ready for Christmas Eve!

Peninsula Team

December 09 2011

What does 24th December 2011 mean for you? Last minute Christmas shopping? A run around the supermarket for sprouts and potatoes? Spending hours covered in wrapping paper and sellotape?

Whilst enjoying the festivities and the preparation for the big day, you should also spare a thought for the Agency Workers Regulations – for Christmas Eve is the first point at which the agency workers you use can reach the all important 12 week point at which become entitled to equal treatment. You should already be providing equal treatment with regard to access to collective facilities and job vacancy information.

Not every agency worker will become eligible to the 12 week rights on Christmas Eve – only those who began an assignment on or before 1st October 2011 and who have not had any kind of break between or during assignments that serves to reset or pause the accrual clock.

So what does this mean? It is important to understand exactly what equal treatment means so that you do not fall into the trap of providing a more enhanced kind of equal treatment than you actually have to.

However, first you should consider whether the Regulations apply to you at all. As the hirer, you must be a:

“person engaged in economic activity, public or private, whether or not
operating for profit, to whom individuals are supplied, to work temporarily
for and under the supervision and direction of that person”

It will be, in the majority of cases, easy to determine whether an employer meets the definition of a hirer. In certain limited cases, however, the lines may be less clearly drawn where the employer is not engaged in ‘economic activity’, for example, in certain care situations.

Assuming the Regulations do apply to you, you need to ensure that after 12 weeks, your agency workers are receiving the same basic pay and annual leave entitlements etc as your permanent staff.

However, this does not mean that you need to find a permanent member of staff with the same job title as the role undertaken by the agency worker and make sure the agency worker is paid the same. Your permanent members of staff may have been with you for a long time and have consequently built up a package of long term benefits. The agency worker is, after 12 weeks, not entitled to that same package because they do not have the length of service that your permanent staff may have. You must simply ensure that the agency worker receives the level of pay that you would offer a new permanent employee carrying out that role at the same level.

Where a pay scale exists which awards a higher level of pay in return for more experience on the job, the agency worker should be paid according to the level of experience he has. It is not a breach of the equal treatment provisions if the agency worker is paid at the bottom of the scale, and a comparable permanent employee is paid higher up the scale, if the agency worker has less experience that places him at the bottom end.

Here it is important to remember that you need not find a comparable employee to prove equal treatment, only show that you are treating the agency worker as you would have treated him if you had recruited him directly.

Whatever the reason an agency worker is taken on by you, whether for a surge in demand over Christmas, or to cover maternity leave or long term sickness, you must bear in mind the effect of the Regulations.

In general terms:

• Be sure to keep an eye on the calendar, marking the date the agency worker started an assignment with you, together with marking the 12 week point after that;
• Mark down any gaps during the assignment in which the agency worker does not work, or gaps between shorter assignments, and do not assume that the accrual period is broken. Specific advice should be taken where there are any gaps;
• Create a communication channel with the recruitment agency to ensure you tell them how much you pay your employees who are doing the same job as the agency worker will be doing, and their annual leave entitlement.

For any further advice on Agency Workers Regulations, please call our 24 Hour Advice Service on 0844 892 2772.

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