38 | TECHNICAL
What rights do agency workers have?
A t the end of last year, news broke that hundreds of agency workers, supplied to work for Harrods, had reportedly been underpaid thousands of pounds after the temporary recruitment agency failed to pay holiday pay correctly. Let’s look at employers’ obligations towards agency workers and where the responsibility lies for ensuring they’re paid in accordance with the law. Background The Agency Worker Regulations 2010 (AWR) contain various rights which apply to agency workers supplied by a temporary work agency (TWA) to work temporarily under the supervision and direction of a ‘hirer’ (the end user). The legislation be found here: https:// ow.ly/KuwT50YvpHw. Under the AWR, agency staff are entitled to equal treatment with an end user’s comparable permanent staff in respect of basic terms and conditions of employment, such as pay, hours of work and holidays, including unsocial hours pay, night work and rest breaks / periods. There are two stages to agency worker rights. There are those that apply from the first day of the agency worker’s assignment with the end user, and those that come into effect only once the agency worker has been with the same end user for 12 weeks. We look at these rights below.
Day-one rights From the first day of their placement with the end user, agency workers are entitled to be treated no less favourably than a comparable employee or worker in the end user’s establishment in relation to ‘collective facilities and amenities’, unless treating agency workers less favourably can be objectively justified. This doesn’t extend to a right to have access to all benefits that the end user provides to their directly employed staff, but to collective facilities provided by the end user to employees or workers as a whole, or to groups of employees or workers. For example, this can include a canteen, car parking or access to food and drink machines. Also from day one, agency workers have the right to be informed of vacancies available within the end user’s organisation. Week 12 rights Agency workers who’ve worked for the same employer in the same role for 12 continuous weeks are entitled to the same basic working and employment conditions as they would be if the employer had directly hired them. These rights include equal pay compared to permanent employees in similar roles, equal working time and break entitlements, and access to the same annual leave entitlements. Other non-cash rewards, such as private health insurance or use of a company car, are excluded. The right to equality of treatment doesn’t include benefits in kind or occupational sick pay, occupational maternity pay, pensions, enhanced redundancy payments, performance-related pay (not directly attributable to the individual’s productivity or quality of work) or profit-related pay. Key information documents Having these rights is of little use if agency workers aren’t aware of what they’re entitled to. To ensure they are, agency workers must be provided with a key information document. This document must be given to the agency worker prior to starting the assignment and must include information such as details of their annual holiday entitlement and pay, details of any costs or deductions from pay and the rate of remuneration.
Avoiding liability for the actions of an employment agency Calculating and paying holiday pay for agency workers is the responsibility of the TWA (although this is based on the information provided by the end user as to what the entitlements of comparable directly employed staff are). When an issue arises with incorrect payments, liability will, in most cases, rest with the TWA. However, that doesn’t stop damage being caused to the end user’s organisation by its association with the agency, with potential loss of customers, reputation and employee trust and confidence being potential consequences. However, liability won’t always sit with the TWA. Where it has taken ‘reasonable steps’ to obtain information and acted reasonably in determining basic working and employment conditions for the agency worker, the end user may be solely liable for the failure to pay the agency worker what they’re due. It’s open to the Employment Tribunal to apportion liability based on the extent of the breach by the TWA and / or the end user. There are measures an end user can take to avoid the negative impact of a breach of the AWR. These include: l carrying out robust due diligence before working with a TWA – this should include checking the documentation it provides to its workers, such as contracts, policies and payslips l providing relevant information on pay and benefits to the TWA in good time l continuing to monitor compliance while the TWA is providing agency workers. Takeaway For many organisations, agency workers are an invaluable source of short and long-term labour, especially where their needs fluctuate and they need a greater level of flexibility than directly employed people can give. However, those that choose to use the services of a TWA must follow appropriate measures to ensure continued compliance with the AWR to avoid legal liability.
Danny Done
Chief Executive Officer, Portfolio Group
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