A recent report found that the number of agency workers in the UK will reach one million by 2020, with numbers of agency workers growing by 30% since 2011. Agency workers fill a key need for a flexible and adaptable workforce for many businesses whilst others believe agency workers are used to keep staff costs down. Agency worker rights are governed by the Agency Worker Regulations which were introduced in 2011 and extended existing rights.
The rights of agency workers differ depending on how long they have been on their assignment. From day one of an assignment the agency worker is entitled to access the same facilities and information about internal job vacancies as any comparable permanent employee in the business. This means, for example, the agency worker should be granted access to the facilities of the end-user including the communal canteen, company provided transport and company provided childcare if these are offered to their full time staff.
Once the agency worker has reached 12 weeks continuous service in the assignment, they become entitled to equal treatment in relation to pay, annual leave, rest periods and time off for ante natal appointments. In practical terms, this means the agency worker should be paid the same as the end user’s comparable employees. The end user is obliged to provide information to the agency on their current wage and working time provisions.
An obvious option for agencies is to assign the agency worker for 11 weeks and then place them on another assignment to avoid the financial implications of them reaching 12 weeks on an assignment. However, the Regulations contain “anti-avoidance” measures to cover these types of unfair assignment structures being used. Once the agency worker has completed either two assignments or two roles with the same hirer the anti-avoidance measures become relevant. A number of factors will be used to determine whether the structure of assignments deprives equal treatment including: the number of assignments; length of assignments; the number of role changes; whether role changes were substantively different and the length of break periods.
It is for a tribunal to ultimately decide whether the pattern of assignments indicate an intention to deprive the worker of equal treatment rights when taking in to account these factors. Where there is no other explanation for this pattern other than avoidance, the agency and the end user could be liable for a maximum fine of £5,000 which can be split between the parties.