Temp Zone

ReQuire Recruitment and the New Agency Worker Regulations 2011

You may be aware that October 2011 will see the introduction of the Agency Worker Regulations 2010. This letter is designed to provide you with some information regarding the new regulation and how ReQuire Recruitment can work with your organisation in order to minimise the inpact of this legislation, whilst maintaing our supply of high quality staff.

There are alot of myths and misconceptions regarding the new regulations, for example that they give agency workers employment rights or that they will make temp supply very expensive. However, this is not the case and the regulations can be effectively managed so that the impact does not have to be significant.

Rights under the Agency Worker Regulations 2010 (“AWR”)

The AWR came into force on the 1st October 2011 and will provide individuals that are classed as agency workers with additional rights rights. The rights can be split into two categories (i) those which apply from the first day of an agency workers assignment (or 1st October 2011 if they are already on assignment) and (ii) those rights which apply after an agency worker has been engaged with a hirer in the same role for a continuous period of 12 weeks ( with some short breaks or breaks for particular reasons, such as illness or maternity preserving such continity).

(i) Day one rights

An Agency worker will have a right to access collective facilities and amenities on your site and to be notified of suitable vacanies within your organisation. The collective facilities and amenities would include facilities such as canteens, car parking, toilets and changing rooms, creche facilities, prayer rooms etc. However, this is only to the extent that you would provide them to directly engaged person undertaking the same job and you can be excused from providing access to such facilities if you can provide a good objective reason why you cannot provide such access. With regard to the notifaction of vacancies, this extends to only to suitable vacancies and can be achieved by posting vacancies in a central location, such as a notice board or intranet, or alternatively you can provide details to us at ReQuire and we can circulate the details to any agency workers we have supplied.

For many hirers these obligations will not necessitate any changes to your current arrangements, as it is our experience that agency workers are already notified of vacancies and have access to facilities and amenities.

(ii) 12 weeks rights

As indicated above, an agency worker will also have have rights after they have been working in the same role for the same hirer for 12 weeks. These 12 weeks can be through any agency or a combination of agencies, so it will therefore be important that you advise us if a candidate we supply has worked for you previously and in what role.

After 12 weeks an agency worker will have right to recieve the same pay and basic working conditions that they would have recieved had they been engaged directly by you on the first day of their assignment, provided that such rates and terms are “ordinarily in force” within your organisation i.e formally recorded or usual custom practice. This effectively means that ReQuire Recruitment will need to pay the agency workers at the same rate as you would have paid had you taken them on directly and provide the same rest breaks, overtime, bonuses and annual leave that would have been applicable.

How the 12 week regulation is calculated

The temporary worker must work for the same Client (‘hirer’) in the same job for a total of 12 calendar weeks.

It does not matter how many hours they work each week, it can be part-time.

It also does not matter if they have worked for the Client (‘hirer’) through more than 1 agency during these 12 weeks.

The continuity of these 12 weeks will not be broken if they stop working for the Client (but return later to the same job) because:

They have a break of up to 6 calendar weeks – when they return to the Client to do the same job we start re-counting towards the 12 weeks after their return.
They are sick or injured and incapable of work or are doing jury service – up to a maximum period of 28 weeks.
They take a break due to pregnancy or maternity – this time off is ‘protected’ from the start of the pregnancy up until 26 weeks after childbirth (or when they return to work), for as long as the assignment was originally intended to last.
They take a break on statutory maternity/paternity/adoption leave – where they are entitled to this – protected for up to 26 weeks after childbirth (or when they return to work) for as long as the assignment was originally intended to last.
They take accrued annual leave entitlement.
- If the ‘hirers’ workplace is shut (e.g. for Christmas or because of industrial action).

N.B. A pregnant agency worker does not have any further rights under the AWR beyond those they are already entitled to and they do not have an automatic right to return to work after maternity leave however they are entitled to paid time off for antenatal appointments and must be paid the appropriate hourly rate.

This continuity of the 12 weeks will be broken, however, if an agency worker:

Starts a new assignment with a different client.
Has a 6 week or longer break from the same (original) client. You can, for example, work in the same assignment for 10 weeks then not work for the same client for another 4 weeks, but then return to the same client in the same job and would be entitled to equal treatment 2 weeks into the second assignment.
Starts a new role with the same (original) client that is substantially different from the previous role (e.g. different skills are needed, hours are different, pay is different, different location, different line manager).