Working 9 to 5: The Agency Workers Regulations 2010

New regulations designed to give temporary employees the same basic working and employment conditions as permanent employees, after a qualifying period of 12 weeks in the job, become effective in October.

“Basic working and employment conditions” mean that agency workers are entitled to maximum working time and night work protection, rest breaks and annual leave entitlement, as well as the principal issue of equal pay. So companies that rely on temporary staff should be aware that these workers will be entitled to equal rates of pay plus other contractual entitlements, including most bonuses. In addition, temps will now be entitled to the same access to facilities and job vacancies from the first day of any assignment.

This will be of concern to companies who rely on the flexibility of the temping industry to balance and vary their staffing levels.

About 4% of the UK workforce are agency workers - the highest figure in Europe

Critics of the regulations argue that equal treatment for agency workers and contract workers doing similar work to permanent employees will impose unnecessary administrative and cost burdens on recruiters and hirers. Hirers will be required to share unprecedented detail and information on how they pay and reward their permanent staff, if they are to avoid legal liability when agency workers are not equally rewarded.

Although the legislation is designed to provide the same rights to vulnerable temporary workers at risk of being exploited, the UK temp market is also populated by highly skilled contractors who favour a more flexible working lifestyle and who are regularly paid considerably more than their permanent counterparts.

It was reported that prime minister David Cameron had sought legal opinion as to whether there was a loophole to amend or not bring the regulations into force. However it is now confirmed that the legislation will come into force and the long-awaited guidance has now been published.

About 4% of the UK workforce are agency workers - the highest percentage in Europe. Companies who use temps now need to consider practical strategies for data sharing with the agencies they work with to ensure clear communication, monitoring and compliance. Depending on the nature of any temporary workforce, there may be costs issues to consider. Inevitably some companies will have to make a decision as to whether any extra cost and the burden of compliance negates the value of retaining a flexible workforce.

Any suggestion that the 12-week qualifying period could be avoided by rotating staff will be caught under the anti-avoidance provisions, which will enable agency workers to bring claims in the employment tribunal if they consider their temporary engagements are being deliberately structured to avoid their entitlement to equal treatment. Deliberate attempts at avoidance could result in a fine of up to £5,000.

Legal liability for non-compliance with the regulations varies between the hirer and the employment agency, depending on the nature of the breach.

Liability for failure to provide equal access to facilities and vacancies will naturally rest with the hirer. In relation to basic working and employment conditions, the agency will be initially responsible for any failure to provide equal treatment, but it will have a defence if it can demonstrate that it took “reasonable steps” to obtain the required information from the hirer. At this point, the hirer can be held liable if an employment tribunal considers it is responsible for the infringement.

Hence, it is important to take steps now to prepare and agree how this information will be provided and shared.

Wendy Trehy is a partner in the employment team at Davies Arnold Cooper