Will employers need to hatch new ways to employ agency staff?

Early indications were that the Agency Worker Regulations 2010 would be scrutinised, and possibly amended, before coming into force on 1 October 2011. The government has now said there will be no changes prior to implementation, but has promised detailed guidance.

Although some aspects of the regulations – such as basic equal treatment principles – were fixed by the European agency worker directive and could not be changed, others are cumbersome or likely to generate confusion, such as the break in continuity of assignments provisions and the anti-avoidance measures.

The regulations will prove challenging once they are in force. Many employers and agencies have been considering ways of working flexibly with them for some time.

Even so, the next 11 months will require careful preparation, starting with an analysis of staffing needs and resources. Encore, working in association with trade body the REC (Recruitment and Employment Federation), have developed a suite of tools which can support businesses in preparation of the AWR implementation.

Hirers should be making provisions or adjustments now. From next October they will need to offer agency workers certain pay and benefits comparable to permanent employees. Most obligations will not arise until the thirteenth week of engagement, but some rights, such as access to information about job vacancies, will be effective immediately.

“Pay” is wider than basic pay and includes, for example, contractual overtime pay or shift allowances paid to employees or workers. It does not include contractual sick pay, redundancy or notice pay, most benefits in kind or bonuses, but there will inevitably be grey areas.

The regulations also give agency workers working time rights, including breaks and holiday allowances, comparable to permanent employees. Agency staff must also have comparable access to staff facilities such as canteens or childcare provision.

The requirement to make news of job vacancies accessible seems to be a particular worry for employers. They should remember that the objective is to treat agency workers equally, not preferentially. Employers only have to provide information on vacancies, not change recruitment processes.

There are a number of issues that employers should be thinking about now so they are ready for next October. They should be:
- analysing staffing needs and costing ways to meet them;
- identifying whether staff pay includes employee benefits, bonus schemes and so on, and the likely additional costs where the regulations apply;
- negotiating improved terms with agencies, possibly through deals to use some exclusively;
- considering how agency workers might access news on internal vacancies;
- reviewing access to childcare and canteen facilities, and checking whether there are waiting lists or restrictions.

Key points
- The agency workers regulations are going ahead as planned from next October
- After 12 weeks in an assignment, agency workers get the same basic pay and conditions as employees
- Sick pay, redundancy and bonuses are excluded

Source People Management