Temporary staff taken on are, in the same way as permanent staff, entitled to annual leave so an employer must ensure that they are paid for accrued holiday. Such staff also have other rights, including entitlement to the national minimum wage, a pay slip and the right not to have money unlawfully deducted from their pay.
However as an employer it’s important to realise the treatment of agency workers changed under the Agency Workers Directive implemented in the UK on 1st October 2011. This significantly affects those companies which provide temporary employees and those companies who employ such workers.
The aim of the Regulations is to provide temporary agency workers with the same basic working and employment conditions as if they were direct employees of the company doing the same job. This right will only apply after twelve weeks in an assignment. An agency worker is also entitled, from the very start of an assignment, to the same access to training and collective facilities, such as childcare, that are offered to permanent employees of the end user.
Equal treatment under the Regulations relates to basic working and employment conditions, such as: pay; working hours; overtime; breaks; rest periods; holidays; access to training and collective facilities, such as childcare. It does not include occupational sick pay, nor will the Regulations change the employment status of temporary agency workers.
- Who’s covered? Workers supplied through a temporary work agency for and under the supervision of a hirer.
Who’s not covered? Self-employed contractors/consultants, fixed term employees, casual workers
There are two types of equal treatment
Type 1….from Day 1
- Information on vacant posts to give the agency worker the same opportunity as permanent employees to find long term employment.
- Access to facilities e.g. canteen, childcare
Type 2….after 12 weeks
- Same basic pay as permanent employees
- Working time, overtime, rest periods, breaks, holidays and public holidays
- Paid time off work to attend ante-natal classes
How to establish equal treatment? Consider on what terms would the agency worker have been employed if you had hired them directly i.e. what would the advert and the contract say?
DON’T FORGET THERE IS NO PAY SECRECY FOLLOWING THE EQUALITY ACT
How to calculate 12 weeks service?
It is 12 weeks with you even if their assignments are operated by more than one agency in that time
(Any work done prior to 1st October 2011 will not count)
When counting 12 weeks, gaps of more than 6 weeks generally mean the counting starts again from 0.
WHAT’S THE PENALTY? £5000 plus any loss of earnings
BEWAREIf you consistently move the agency worker around after 11 weeks the tribunal may smell a rat unless you have evidence to justify