Q- My client will be taking on an agency worker for the first time in a few weeks, what things do they need to be aware of?
A- Many employers regularly turn to agency workers to fill short term needs in their business, however as this will be your client’s first time using an agency worker there are some key things they should know.
First of all, it will be important for your client to have a clear understanding of the definition of an agency worker. This is an individual who is engaged in a contractual agreement with a temporary work agency to work temporarily for, and under the supervision and direction of, the hirer i.e. your client.
The work agency is responsible for paying the agency worker as well as taking disciplinary action for any misconduct that occurs whilst they are placed with your client. It is essential that your client is familiar with the correct procedure for reporting issues such as lateness or unprofessional behaviour. They should also give the work agency up to date information on their employee terms and conditions so they can ensure that an agency worker receives the correct equal treatment when the time is right.
Many employers choose to hire agency workers for brief periods as they are not entitled to as many day-one rights as existing staff with employee status. Whilst agency workers possess the initial right to access collective facilities, including car parking and the staff canteen, as well as receiving notice of upcoming job vacancies, your client will be able to pay them a lower salary than permanent employees or reduced overtime payments for a prescribed period of time.
Having said this, your client must still ensure they abide by the statutory minimum requirements when it comes to pay, as well as working time and rest breaks. Agency workers still have the same statutory protections on matters such as this, and failing to provide these would be considered unlawful.
Your client should also understand that once the agency worker has been on an assignment with them for 12 continuous weeks they will gain additional rights under the Agency Workers Regulations 2010 (AWR). At this point they will be entitled to be treated the same as comparable employees, in relation to basic working and employment conditions such as salary, bonuses and paid time off for ante-natal appointments.
It will be important that your client keeps track of an agency worker’s length of service to ensure their right to equal treatment is not breached, thereby avoiding potential tribunal proceedings. At the same time, it is possible for agency workers continuous service to be broken and re-set to zero in specific situations, including if they begin a new role with your client. However, you need to make sure this change is genuine and any new role is ‘substantially different’, as a failure to do so will run the risk of a £5,000 penalty for anti-avoidance under certain circumstances.