Agency Worker Regulations - Preparing For The New Law

The Agency Workers Regulations 2010 (the Regulations) will come into force on 1 October 2011. Despite the long lead in time for these Regulations (the legislation process effectively started in 2008) many organisations have not yet prepared themselves for the new rules. This is not least because the Government guidance was not finalised until last month.

What is an "agency worker"?

The Regulations adopt the definition of "worker" used in the Employment Rights Act 1996, and on the face of it is fairly narrow in scope. It covers those who have a contract of employment with the agency, or those who have a contract with the agency to perform work and services personally for the agency.

The Regulations will apply to the supply of temporary workers by agencies but not the supply of candidates for permanent employment. The definitions of "agency" covers the classic temporary work agency - an "employment business". It also covers other third parties who provide temporary workers and whether acting as intermediaries where an "agency" is involved or not. It will therefore cover umbrella contract arrangements.

Workers who are genuinely self-employed will be outside the scope of the Regulations. Determining who is genuinely self-employed will involve the usual employment law analysis and having a personal services company will not in itself be sufficient.

Direct hires will not be covered by the Regulations and nor will banks of workers or casual staff or contractors (without a personal services company) engaged.

Right to equal treatment

After a 12 week qualifying period, agency workers will be entitled to the same basic working and employment conditions as they would have enjoyed if hired directly by the hirer. The principle of equal treatment is limited to: pay, duration of working time, length of night work, rest periods, rest breaks and annual leave. "Pay" has a wide definition and will include commission, bonus based on individual performance, and holiday pay. There is no general right to protection against "less favourable treatment" as with the part-time worker and fixed term employees regulations. The Regulations also do not change the status of agency workers or give them more general employment rights.

The 12 week qualifying period

The main right to equal treatment does not apply until an agency worker has undertaken the same role, whether on one or more assignments, with the same hirer over a period of 12 "continuous" calendar weeks.

There...