Under forthcoming new laws, temporary staff provided by employment agencies will soon have rights similar to permanent employees of the company they are working at. James Hall explains the implications for employers.


THE PROBLEM

I understand the law is changing in respect to temporary staff hired through an employment agency. Can you explain what it will mean for me as an employer?

THE LAW

Under current UK law, agency workers do not have the same rights as permanent staff in relation to basic working conditions, such as working hours, pay and holidays. To tackle this European-wide inequality, the EU Directive on Temporary Agency Work was introduced in 2008. To comply with this, the UK law surrounding the employment of agency workers must be changed by October 2011.

The new regulations are currently under consultation and the second and final consultation is due to begin in early 2010. At present, it is anticipated that the new regulations will come into force in October 2011.

The regulations will cover individuals who perform temporary work arranged through an employment business, such as an employment agency. Anyone who is self-employed, a contractor, or working through their own limited liability company, will be excluded from the regulations but anyone who works through an "umbrella company", for example, they operate their own service company but are not strictly self-employed, will fall under the regulations.

The Government intends to limit the protection of the regulations to only those who have been in a role for 12 weeks or more, no matter how many hours have been worked. The protection is significant. Those agency workers to whom the new regulations apply will be entitled to the same basic employment conditions as the employer's permanent workers. These include pay, holidays, working time, night work, overtime, breaks and rest periods. In terms of pay, these basic conditions will only apply to salaries and some performance-based bonuses.

It is also proposed that agency workers will have access to all of the hirer's collective facilities and amenities. This right will start from the moment they are hired, not just after 12 weeks, and include access to catering facilities, transport and child-care. The responsibility for this will be borne entirely by the hirer and not the agency.

The hirer will also be required to give agency workers information on any vacancies they may have, as well as the same rights to apply for these that their permanent employees have. This will require hirers to advertise vacancies in places which can be accessed by agency workers.

EXPERT ADVICE

It is inevitable that hiring agency workers will become more expensive. Employers who use agency staff will need to re-evaluate whether this extra expense is still justifiable in the light of the extra responsibilities, or whether they would be better off to employ their staff directly.

CHECK LIST

Although no immediate action is needed, employers are advised to:

• Review the basic employment conditions for their permanent employees and ascertain how these could be extended to agency workers.
• Keep a watching brief on the changes in the law.
• Be prepared to make changes so agency workers would be able to access any collective facilities, such as canteens and child care provisions.
• Consider what provisions will need to be put in place to make agency workers aware of job vacancies within the organisation.
• Consider if it is more advantageous to employ permanent staff directly.

BEWARE!

While agencies will carry the main burden for ensuring that regulations are complied with, hirer businesses are still responsible for implementing these regulations and can be liable for any failures where the agency has made "reasonable enquiries". The business will also have sole responsibility for allowing access to collective facilities.

CONTACT

James Hall, trainee solicitor, Charles Russell LLP