Do agency workers have the right to be considered for vacancies in the same way as permanent employees?
No. They are only entitled to be informed of relevant job vacancies within the hirer’s organisation (although this will not apply when a hirer is restructuring or redeploying to prevent redundancies). This right only applies to the provision of information – the hirer has the freedom to choose how it will treat any applications.
Are agency workers entitled to enhanced payments, such as company sick pay or company maternity pay?
The AWR specifically exclude certain payments that a hirer might offer its own staff. Agency workers are not entitled to occupational sick pay, pensions, maternity, paternity or adoption pay, redundancy pay, pay for time off for trade union duties, guarantee payments, loans, expenses, payments or rewards linked to financial participation schemes (for example, share ownership schemes), benefits in kind offered as incentives or long service rewards, and bonuses that do not relate to the individual’s work.
Our productivity bonus scheme applies to our permanent employees after six months in the job. How will this affect our agency workers?
Agency workers will be entitled to join the scheme after six months because this is a payment which directly relates to the amount of work done by the individual. The six month time period will run from the first day the agency worker starts work with the hirer.
What additional rights do pregnant agency workers have?
After completing a 12-week qualifying period, pregnant agency workers are entitled to paid time off work for antenatal care.
The agency should also carry out a risk assessment in relation to a pregnant worker’s assignment. If the assignment is unsuitable for her, and reasonable adjustments cannot be made, the agency should seek suitable alternative work. If there is no alternative, the agency may need to pay her for the remainder of an assignment.
What rights do agency workers have if they were in an assignment before 1 October?
The regulations are not retrospective. These agency workers have ‘Day 1’ rights but they must complete a 12-week qualifying period starting from 1 October to be entitled to equal treatment with regard to other basic working and employment conditions.
Do the regulations mean that I will now employ agency workers?
No. The AWR are concerned with providing rights to equal treatment and do not change the legal status of an agency worker. That will depend on the actual relationship between the parties.
Can agency workers now claim unfair dismissal?
Ordinarily, this right only applies to employees who have one year qualifying service with an employer, so it may be possible if an agency worker is employed by the agency. A temporary worker who is an employee of the agency will be regarded as automatically unfairly dismissed if the reason for the dismissal is related to rights or proceedings under the AWR.
I use an employment agency to recruit temporary employees, whom I then pay directly. Do the regulations apply?
The AWR do not apply where you use an employment business to recruit your own staff directly.
Would the regulations apply to our own bank of temporary staff?
If you directly recruit your own staff, and are not supplying them to work under the supervision and direction of another hirer, then the regulations will not apply.
We use an external company to provide our cleaning service. They supply the cleaners and manage their work. Will the regulations apply?
This type of arrangement is often referred to as a ‘managed service contract’. If the contractor supplies workers, but is also responsible for supervising and directing those workers and determining how and when the work is done, then the regulations are unlikely to apply. If, however, the contractor supplies workers to work under your supervision and direction, then the AWR may apply.
Can I move agency workers around our various sites to avoid them acquiring a 12-week qualifying period of service?
Working in different locations for the same hirer will generally not break the qualifying period, unless the role that the agency worker does is also substantively different.
Do we need to allow temporary agency workers to attend our staff Christmas party?
No, this would be entirely at your discretion. An office party would not be considered to be a collective facility or amenity and would not be classed as a Day 1 right for agency workers
