The Agency Workers Regulations affect all organisations that supply or hire temporary agency workers (commonly referred to as 'temps'), who are under the 'direction and supervision' of a hirer.
The regulations give rights to temporary agency workers (TAW), which can be enforced at an employment tribunal against their agency and/or the hirer.
Before the regulations came into force, agency workers already had the right to:
Access to facilities and amenities
From the first day of an assignment, a TAW will be entitled to the same rights of access to the hirer's collective facilities or amenities as are enjoyed by a comparable worker working at the same location (or, if there is no such person, at another location used by the hirer). A 'comparable worker' is someone employed directly by the hirer who does broadly the same work or has broadly the same skills and qualifications as the TAW. Collective facilities or amenities include those provided by the hirer to its workforce as a whole or to particular groups. Examples might include staff canteens, common rooms, car parks, toilet/shower facilities, transport services or workplace crèches.
The facilities should be made available even if they are shared with another business and can extend to facilities that are based at another site occupied by the hirer.
This does not mean a TAW will get priority over other staff and does not include off-site facilities provided by a third party, such as subsidised gym membership.
Hirers can refuse access to facilities only if they can 'objectively justify' their decision by establishing it as both reasonable and proportional.and state that it is unlikely hirers will be able to justify such decisions solely on grounds of cost.
Information on job vacancies
A TAW will also have a right to access information on job vacancies with the hirer. However, this is limited to those vacancies that would be available to a comparable worker working at the same site as the TAW, so not every vacancy must be communicated. However, such communication should be made simultaneously to the TAW and comparable worker.
This right will not affect a hirer's ability to control:
This right will not apply if there is a genuine recruitment freeze, such as prior to a restructuring and/or redeployment of staff.
It is recommended that hirers provide details of the available facilities and vacancies to the TAW during their induction.
Alternatively, details of the facilities could be provided to the agency as part of the information regarding the assignment. Information regarding vacancies can be posted where they can be reasonably accessed by a TAW, such as on a notice board or an intranet.
If a TAW works for a hirer in the same job for more than 12 calendar weeks, they will qualify to receive the same 'basic terms and conditions of employment' as a comparable worker.
The regulations state that these are terms relating to pay, duration of working time, night work, rest periods, annual leave and, for pregnant TAWs, paid time off for antenatal appointments.
A hirer should undertake a risk assessment in relation to a pregnant TAW just as it should do for its pregnant employees.
For example, if a TAW is paid less than a comparable permanent worker, then after they have worked for 12 weeks they will be entitled to the same rate of pay.
Before the TAW qualifies for these rights, the hirer should provide the agency with details of the basic terms and conditions of employment of either a comparable permanent worker (if there is one), or (if there isn't) that the TAW could have expected to receive if employed directly by the hirer.
This should include information on:
Note that the regulations exclude entitlement to certain terms and conditions, such as:
The TAW should write to the hirer requesting information regarding their 'day one rights' before starting a claim at an employment tribunal for breach of the regulations.
The hirer has 28 days from receipt of the request to respond in writing with relevant information regarding the rights of a comparable employee and, if applicable, the reasons for the differing treatment of the TAW.
If a TAW believes that they are not receiving their equal treatment rights, they should write to the agency requesting details of the basic terms and conditions of employment that they can expect to receive.
The request cannot be made before they become entitled to the equal treatment rights and must be made before starting a claim at an employment tribunal.
The agency has 28 days from receipt of the request to respond in writing with relevant information regarding the hirer's basic terms and conditions of employment (based on the rights of any comparable employee); any relevant information or factors taken into account when determining them (such as pay scales); and the reasons for any difference in the treatment of the TAW.
If the TAW has not received this within 30 days of their request, they can request the same information from the hirer who will also then have 28 days from receipt to provide a written response.
A calendar week means 7 days, starting with the first day of an assignment. It does not matter how many hours the TAW works during a calendar week. Therefore, a TAW who starts on a Wednesday and works for 2 hours that day and no more up to and including the following Tuesday will have accrued one calendar week.
The regulations provide for situations when the number of calendar weeks will pause, continue to accrue or restart, whilst a TAW is accruing their 12-week qualifying period.
The number of calendar weeks will pause if there is a break in the assignment or between assignments:
The number of calendar weeks will continue to run if there is a break in the assignment:
The number of calendar weeks will restart if the TAW:
What 'substantially different' means will depend on the circumstances, but it may include, though is not limited to, differences in:
Generally, workers who are not under the direction and supervision of a hirer are excluded from the regulations. This may include:
In the event of a dispute regarding whether a worker is excluded from the rights granted by the regulations, an employment tribunal will look at the reality of the working relationship and the true intentions of the parties and will not solely rely on the terms of any agreements made between them.
Hirers and agencies cannot require TAWs to sign agreements which exclude their rights under the regulations.
Furthermore, the regulations contain anti-avoidance provisions which prevent a hirer or agency from implementing structures or practices which are intentionally created to deprive a TAW from qualifying for the new rights.
There are a number of potential employment tribunal claims that can be made against a hirer and/or an agency, which must be brought by a TAW within 3 months of an alleged breach of the regulations.
A hirer will be held liable for failing to provide for the 'day one rights' and, depending on the circumstances, may be jointly liable with the agency if a TAW's equal treatment rights have been breached.
TAWs are also able to make a claim if they have been subjected to a detriment (such as early termination of an assignment) by the hirer or agency because they have (or are believed or suspected to have):
A hirer or agency will also be liable if the TAW has suffered a detriment because they believed or suspected that the TAW intended to do any of the above.
An employment tribunal can order the hirer and/or the agency to pay compensation to a TAW if their rights under the regulations have been breached.
There is no limit to the amount that can be awarded, although generally it will be limited to actual financial loss or a reasonable amount if the loss cannot be quantified (such as if access to facilities are refused).
However, employment tribunals must award a minimum of 2 weeks' pay.
Awards of up to £5000 can be made against a hirer or agency if they have intentionally tried to circumvent the regulations.
The following actions are recommended if you are currently using TAWs or intend to do so:
Hirer's should also consider: