The Agency Worker Regulations come into force on October 1st 2011. This legislation gives agency workers the same basic working and employment conditions (which are pay, the duration of working time, night work, rest periods, rest breaks and holidays) as he/she would ordinarily have been entitled to for doing the same job, had they been recruited (at the time they were) directly by the hirer rather than through an agency.
In order to qualify for this protection, the worker will need to have completed a qualifying period of 12 continuous weeks in the same role with the same hirer. There are a number of anti-avoidance provisions within the legislation to prevent a hirer from circumventing the Regulations to prevent a worker qualifying for protection.
Agency workers will also have the right to be treated no less favourably than an employee of the same hirer who is engaged in the same or broadly similar work (known as a “comparable employee”) in relation to collective facilities and amenities provided by the hirer, such as a canteen, childcare facilities or transport services.
The Regulations also provide that agency workers will be entitled to be informed by the hirer of any relevant vacant post with the hirer, so that they will have the opportunity to find permanent employment with the hirer. This can be done by way of a general announcement to all staff at an establishment.
An agency worker who believes they are receiving less favourable basic working and employment conditions than a comparable employee, will have the right to make a written request to their agency or, if no response is received, the hirer for a written statement containing information relating to that treatment, which can be used as evidence in any tribunal proceedings. Workers will also have the right to bring a claim in the employment tribunal against both the hirer and the agency for infringements of the Regulations, for which compensation can be awarded. This will include if they are subject to any detriment, which includes dismissal, on the grounds that they have asserted their rights under the Regulations.
Bethan Jones, employment law solicitor with Lanyon Bowdler says “Businesses which engage agency workers should take note of their obligations under the Regulations and ensure that their arrangements in respect of such workers are compliant with the legislation. They should also always bear in mind the existing rights of agency workers outside of the Regulations, which include their right to paid annual leave, the minimum wage, limits of working time and protection against unlawful discrimination, such as on the grounds of sex, race, age and disability.”
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