The Agency Workers Regulations, which come into force on 1st October, will implement the Temporary Agency Workers Directive, giving agency workers the same basic employment conditions after 12 weeks in a given job as if they had been employed directly by the end-user.
The rights fall into two categories. Day 1 rights for all agency workers will apply from the first day of employment. These cover things like equal access to your facilities (such as canteen, childcare facilities, etc.). The second category confers rights on employees who have spent 12 weeks in the same job.
These workers will be entitled to equal treatment entitlements relating to pay and other basic working conditions, such as annual leave and rest breaks. Pregnant agency workers who have completed the qualifying period will be able to take paid time off for ante-natal appointments during an assignment.
In this article we look at who is – and who is not – protected by the Regulations. The AWR apply to individuals who work as temporary agency workers; individuals or companies (private, public, charities or social enterprises) involved in the supply of temporary agency workers, either directly or indirectly, to work temporarily for and under the direction and supervision of a hirer; and hirers (private, public and third sector).
For someone to be an agency worker there must be a contract (an employment contract or a contract to perform work personally) between the worker and the agency; that worker must be temporarily supplied by the agency to a hirer; and when working on assignment the worker is subject to the supervision and direction of that hirer.
Those who are likely to be denied protection under Regulations include people who find work through a temporary work agency but are in business on their own account (where they have a business to business relationship with the hirer who is a client or customer). Others likely to be outside the scope of the Regulations are workers who are employed on Managed Service Contracts, that is, where the worker does not work under the direction and supervision of the host organisation, and individuals working for in-house temporary staffing banks.
Job seekers who find direct employment with an employer through an “employment agency” and individuals on secondment or loan from one organisation to another – would also fall outside the protections of the Regulations. Where a worker is in a business on his own account, the Regulations won’t apply.
Whether the person is genuinely self-employed will be a question of fact in each case. However, just putting earnings through a limited company would not in itself put a person beyond the scope of the Regulations.
In the event of a dispute, in order to establish if a worker is genuinely in business on their own account, the courts will examine the individual’s circumstances and consider all aspects of the relationship, including what a contract might say or what it does not say, the expectations of the parties and their conduct, to establish the reality of the relationship.
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