Agency Workers

16 April 2019

Sometimes, you might only require staff for a short period of time, especially if your business experiences fluctuations in demand. If this is the case, you could benefit from hiring agency workers.

Agency workers may have a positive impact on your business. Not only can hiring them be more cost-effective, but it can also provide flexibility for both you and the worker. But it's important to be aware of their employment rights, otherwise you could face claims in the Workplace Relations Commission.

In this guide, we'll discuss temporary agency workers, their employment rights, as well as how to ensure equal treatment when hiring them.

What is an agency worker?

An agency worker is an individual employed by an agency who allows them to work for another business. This could be a permanent contract or temporary work.

An administrative assistant could have a contract with a temporary work agency. In this instance, an office might hire them whilst a staff member is on annual leave.

Why do businesses hire temporary workers?

Businesses hire temporary workers for several reasons, most notably, to help with fluctuations in demand. Let's explore some other advantages of recruitment via employment agencies:

Saves money

One advantage of hiring temporary workers is that it could save your business money. For example, if your business has fluctuations in demand, you might not need as much staff through quieter periods.

Therefore, hiring an agency worker would be more cost-effective than employing someone on a permanent contract. Because you won't need to pay to employ someone even when you don't need them.

Reduces workload of employees

Temporary agency work could also reduce the overall workload of your employees. During busy periods, having another pair of hands will help ease the duties of permanent staff. For example, without the extra help, staff might have to prioritise other duties - such as serving customers.

This could mean their other tasks could be missed, or done to a poor quality. With an agency worker, staff would be able to prioritise their normal responsibilities. Because the temporary worker could handle immediate duties such as serving customers.

Efficient recruitment

Another benefit of hiring temporary agency workers is that it speeds up recruitment. Whilst you might have to spend money on recruitment fees, the agency will likely have a suitably qualified worker you can hire straight away.

Meaning you won't need to spend time writing a job advert, conducting interviews, and establishing a contract of employment. And will have more time to spend on developing your business.

Who is not considered an agency worker?

Under Irish law, an individual is not considered an agency worker if they work as independent contractors, or own a business that an employment agency uses. They are also not classed as an agency worker if:

  • They’re employed under a managed service contract. For example, cleaners, waiting staff, and bartenders.
  • They’re on a Work Place Experience Programme. This provides people who have never had a job or who have lost their job an opportunity to get work.
  • They’re in community employment or TÚS. This helps people who are unemployed by providing them with short-term working opportunities.
  • They’re on the Department of Social Protection vocational training or retraining scheme. Or any other programme financed out of public money.

Who is the employer of an agency worker?

The employer of an agency worker is typically the person or party who pays their wages. This could be either the employment agency or the client who hires them. But, this doesn't apply to the following employment legislation:

  • The Unfair Dismissals Legislation: This states that an agency worker's employer is the person or business they perform work for.
  • The Safety, Health and Welfare at Work Act 2005 (as amended): This also outlines that responsibility to comply with Health & Safety requirements belongs to the person or business they perform work for.

Other types of employment legislation protect agency workers from less favourable treatment. This applies even if they're only temporarily assigned to a workplace.

What rights do agency workers have?

The Protection of Employees (Temporary Agency Work) Act 2012 details the employment rights of agency workers. This includes equal access to collective facilities as the contractor's direct employees - such as childcare facilities and transport services. The act also details their rights to the same:

  • Basic working conditions.
  • Basic employment conditions.
  • Basic pay.
  • Rest breaks.
  • Rest periods.
  • Night work.
  • Public holidays.
  • Annual leave.

This also includes equal access to information about job vacancies from the contractor. Agency workers must receive this equal treatment from day one of employment.

When do equal treatment provisions not apply?

Equal treatment provisions don't apply if the temporary agency worker is paid between each new assignment. But this is in respect to pay and conditions provisions only, they must still receive equal treatment in relation to their working conditions.

If you don’t provide an agency worker with equal working conditions, they could raise a claim to the Workplace Relations Commission. Consequently, your business could face legal costs and even reputational damage.

How much pay are agency workers entitled to?

Under The Protection of Employees (Temporary Agency Work) Act 2012, agency workers are entitled to the same basic pay they'd receive - if they were hired under a contract of employment. The act also covers pay related to:

  • Shift premium.
  • Piece work.
  • Unsocial hours.
  • Hours worked on a Sunday.

The law does not require you to calculate this based on a comparable employee or comparable worker in the same job. But it's advisable to do so for equal pay purposes.

What pay is not covered by The Protection of Employees (Temporary Agency Work) Act 2012?

The Protection of Employees (Temporary Agency Work) Act 2012 does not cover pay related to occupational social security schemes. It also does not cover pay related to:

  • Financial participation schemes.
  • Sick pay.
  • Occupational pension schemes.

Can an agency worker submit an unfair dismissal claim?

Yes, agency workers can submit an unfair dismissal claim to the Workplace Relations Commission.

But employment law states that this must be against the business that hires them, rather than the agency they work for.

Can an agency worker raise a grievance?

Yes, an agency worker can raise a grievance. For example, if their employer is failing to provide basic working and employment conditions, such as rest periods.

They might wish to raise a grievance first before making a complaint to the Workplace Relations Commission. The law states that the agency worker must raise the grievance with their hirer, rather than the agency they work with.

Get expert advice on agency workers from Peninsula

When hiring agency workers, you must ensure their employment rights are met. This includes providing them with the same basic working and employment provisions, hours, and pay.

If you fail to do so, your business could face severe consequences. Such as claims to the Workplace Relations Commission, financial loss, and damage to your business's reputation.

Peninsula offers 24/7 HR advice and support on the working and employment conditions of agency workers, which is available 365 days a year.

Want to find out more? Contact us on 0818 923923 and book a free consultation with one of our HR consultants.

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