Agency Workers Rights legislation: What do I need to consider?

Problem:​ I employ a lot of temporary staff during busier periods of the year, especially around Christmas and have heard of the new Agency Workers Rights (AWR) legislation. What do I need to consider now that I didn’t before?

Solution:​ Agency Workers Rights came into force on 1 October 2011. To summarise, it gives an agency worker (a temporary person who is supplied to you through an agency), the same basic working and employment conditions they would have been entitled to had they been directly recruited by your business. However, these conditions only apply after they have undertaken the same job within your business for a 12-week qualifying period.

What you need to consider if you're worried about not complying with the legislation is, firstly do you need an 'agency worker' for more than 12 weeks? if so, read the following carefully and make sure you comply. Also, ensure any managers who recruit staff are aware of the AWR to avoid any unnecessary action:

• When does the 12 week qualifying period start?:​ On 1 October 2011 and accrues on a weekly basis, regardless of the number hours worked each week.
• How do I calculate the qualifying period?: ​As long as there is a break of six calendar weeks between appointments or the agency worker starts a substantively different role in your business then continuity will be broken and the agency worker then starts their 12-week qualifying period all over again.
• What are agency workers entitled to after the 12 week qualifying period in the same job?:​ ​Basic working and employment conditions related to pay which includes overtime, holiday pay, bonuses for individual performance and vouchers with a monetary value such as childcare vouchers, breaks, holidays and contractual annual leave must be on comparable terms with your permanent employees. Agency workers also qualify for paid time off for antenatal appointments.
• What is not included?:​ Contractual redundancy payments, sick pay, occupation pension pay, notice pay, loans, expenses, long service rewards and non-contractual bonuses.
• What are agency workers entitled to from day one?: ​Some rights apply immediately from the start of their appointment which include having the same opportunity to apply for vacancies as other employees (although they will still need to meet the usual selection criteria) and access to facilities that permanent employees are offered such as child-care and parking. However, on day one they will not be entitled to enhanced rights – eg a place in a crèche which has a waiting list, although they should not be prohibited from joining the list.
• What happens if you don’t comply?:​ If your business breaches its obligations under the new law an employment tribunal can award compensation, taking into account the agency worker's losses. A tribunal can also award compensation of up to £5k against your business if it decides you have attempted to obstruct an appointment in order to avoid the qualifying period.
• Where can I get further information?: www.direct.gov.uk​​