Employing temp staff through an agency is a good way to meet the peaks of demand in your business; as a result you dont need to employ permanent staff who might not be fully utilised during dips in workload. However from 1st October 2011 the new Agency Workers Regulations gave agency workers, once they have 12 weeks service, rights to pretty well the same terms and conditions as your permanent staff. So such things as working time, holiday entitlement and pay all fall within the scope of these Regulations. As a small business employing temps then – what do you need to know?
- Temps only qualify after a 12 week period. However there is no minimum work period defined in a week so even 1 day per week for 12 weeks would qualify, and if the temp returns within 6 weeks, then the previous period counts towards the 12 weeks too. During periods of sickness or certain other absences like jury duty, the 12 week period is simply ‘paused’ for that period.
- Dont think you can get around the Regulations by just getting rid of temps after 11 weeks and then re-employing them 6 weeks later. The legislation contain anti-avoidance provisions which apply when the agency worker has completed two or more assignments with the same company or with connected companies. A £5,000 additional Employment Tribunal award has been introduced for any company found to be in breach. Therefore you must ensure you do not inadvertently employ such temp workers on 3 occasions if your permanent staff have better terms than your temps.
- This is all only an issue if you are giving your permanent staff greater rights than your temps in relation to basic terms and conditions (i.e. those that the temps would have received if you recruited them directly). These basic working and employment conditions are: pay (plus any fee, bonus, commission, holiday pay or other payment directly referable to the employment), working hours, overtime, breaks, rest periods, holidays, and access to training and collective facilities such as childcare. You must ensure that your qualifying temps receive all such payments and entitlements.
- After completing a 12 week qualifying period in a given job, pregnant agency workers will be allowed paid time off to attend antenatal medical appointments and antenatal classes. If they can no longer complete the duties of the original assignment for health and safety reasons related to their pregnancy, they must be found alternative sources of work. (If alternative work cannot be found, then the pregnant woman will have the right to be paid by the agency for the remaining expected duration of the original assignment).
- Equality of treatment does not apply to all benefits however and such things as: non-cash rewards, private medical insurance, private use of a company car, occupational sick pay, occupational pension schemes, season ticket or other loans, life assurance or health insurance provided by the company are all excluded. You do not therefore need to include these entitlements for your qualifying temps.
- Remember when you are dealing with an Agency, you will need to ensure that they are aware of what needs to be paid to the qualifying temps in comparison to your permanent staff. You will therefore need to provide them with access to your terms and conditions and agree the appropriate payments. You also need to negotiate terms with the agency; just because you may need to pay more to your temps does not mean the agency commission needs to increase too.
- You need to make an assessment of your potential increase in costs, and decide whether there are other ways in which you could have the same flexibility in your workforce but in a more cost-effective manner. See the article on making your workforce more flexible here.
The new Regulations are complex and detailed guidance from the Department for Business Innovation and Skills can be found here.
(Article Reviewed February 2018)