Agency Workers Regulations 2010: Are you up to speed?

The Agency Workers Regulations 2010 (the "Regulations") came into force on 1 October 2011 with the aim of achieving equality between agency workers and permanent employees as regards their basic terms of employment.  The Regulations will have particular impact in the food and drink and leisure and tourism sectors as businesses utilise agency staff to combat the seasonal fluctuations in consumer demand.

How will the Regulations affect you?

• If you use any staff placed through a 'Temporary Work Agency' that are under your supervision and direction (as a 'Hirer') they are covered by the new Regulations. Those who are genuinely self-employed and under managed service contracts (where there is no direct supervision by the Hirer) are not covered.
• From the start of an assignment the agency staff are entitled to be notified about any suitable permanent vacancies that arise within your organisation and are entitled to participate in any on-site collective facilities provided for the benefit of permanent staff (e.g. canteen, childcare facilities, transport or parking arrangements).
• If the agency staff are employed in the same role for a period of 12 weeks they are also entitled to receive the same basic working and employment conditions as a permanent employee undertaking the same or broadly similar work. These are limited to pay, holiday entitlement, working time and rest breaks.
• 'Pay' includes wages, overtime pay, holiday pay, commission and bonuses that are directly attributable to the individual performance of a worker.
• Complex 'anti-avoidance' measures are in place to prevent assignments from being deliberately structured to prevent agency staff from reaching the qualifying period. Any change to a worker's role will need to be with substantially different duties to break the qualifying period.
• Breaks of up to 28 weeks due to ill health and up to 6 weeks holiday will only pause the qualifying period. During maternity, paternity or adoption leave the qualifying period will continue to run.
• A Temporary Work Agency and the Hirer can be liable for a breach of the Regulations depending upon which party was at fault. Agency workers are afforded protection under the Regulations which includes the ability to make a claim to the Employment Tribunal for compensation.

 If you require further information or specific advice regarding agency workers please contact Tim Richards, head of Michelmores' Food & Drink Team: tim.richards@michelmores.com or Annelie Carver, head of Michelmores Leisure & Tourism Team: annelie.carver@michelmores.com