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If You Engage Agency Workers You Should Read This!

View profile for Joan Casson
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IF YOU ENGAGE AGENCY WORKERS (OR ARE THINKING OF USING THEM) YOU SHOULD READ THIS!

Those businesses engaging agency workers through an employment agency should know that agency workers who have been continuously engaged by them for 12 calendar weeks are entitled to the same terms and conditions as they would have received if they had been employed directly by the business.  The terms and conditions which must be the same relate to pay, duration of working time, night work, rest periods, rest breaks and annual leave. 

These requirements are set out in regulation 5 of the Agency Workers Regulations 2010.

But did you know that tribunals and courts will compare the terms of agency workers to employees to ensure that they are at least the same?

The regulations permit agency workers to receive greater benefits in these areas, but not less, than their employed counterparts.  Also, terms of agency workers and employees are compared on a term-by-term basis.  Each of the agency worker’s terms must be at least the same as the related terms in the contracts of employees doing the same job.  Companies which use agency workers cannot satisfy the legal requirements by compensating agency workers more generously in relation to other benefits to offset a lesser benefit in relation pay, duration of working time, night work, rest periods, rest breaks and annual leave.  

The rule is illustrated by the facts of a recent case decided by the Employment Appeal Tribunal making the first written decision on this issue.  The Agency Workers Regulations were breached when an agency worker, who had been engaged for 12 weeks continuously, received 28 days’ leave per annum when employees in the same role received 30.5 days.  The Regulations were also breached when the agency worker was paid for only 30 minutes of their daily, one-hour rest break while employees, who were allowed the same rest break, were paid for the full hour.  The employer was not allowed to offset the higher rate of pay paid to the agency worker against these individual entitlements without clearly providing that the additional monies paid related to those entitlements and fully compensated for them.

This “term-by-term” analysis is not unusual.

 It applies in cases on equal pay and discrimination and is applied to employees’ contracts after a transfer of their employment under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

The moral of the story is that employers should always check to see if their method of pay and benefits truly satisfies legal requirements.

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