TEMPORARY AGENCY WORKERS DIRECTIVE

From 1st October 2011 there will be major changes in respect of agency workers under the implementation of the Temporary Agency Workers Directive.

 This directive means that agency workers will have the same basic terms and conditions such as pay, working hours and holidays, as a directly employed worker, after they have been in the job for 12 continuous weeks.

It is essential to note that the 12-week period must be continuous, with the worker in the same role, with the same hirer throughout on one or more assignments/jobs.

Continuity of this 12-week period will be deemed to be broken if the worker, while assigned to the same hirer, is given a new role comprising of substantively different duties or work.
Employers hoping to avoid high costs when new agency workers legislation comes into force by repeatedly terminating agency worker contracts at 11 weeks, breaking the cycle for six weeks and then rehiring them, could still be breaking law.

One avoidance tactic in theory would be to terminate all agency worker contracts at 11 weeks and ensure there is a break of more than six weeks before the same workers are hired again, thereby ensuring they do not qualify for equal treatment as per the legislation.

However, this is not advisable. It may not be manageable in practice and risks breaching the anti-avoidance provisions which are aimed at penalising hirers where they intentionally structure assignments to avoid the regulations.

It is not possible to ‘contract out’ of the Regulations

It is not possible to contract out of the legislation, this is expressly prohibited, with a fine of up to £5,000 for avoidance arrangements which are designed to prevent the 12 week qualifying period being met. For example, if a hirer was to intentionally rotate agency workers through substantively different assignments to break continuity.

These anti-avoidance provisions are only effective when the worker has completed two or more assignments or roles with the hirer or with connected hirers and potentially require tribunals to investigate hirers’ motives where assignments raise suspicion.

Keeping records

Effective record-keeping is essential for firms wishing to stay on the right side of the law, which also stipulates that the qualifying 12 week period does not have to be with the same agency.
An agency worker working with different agencies that each places him with the same hirer in the same role for just one day per week in a 12 week period will qualify for equal treatment under the law.
This introduces a requirement upon agencies and hirers to keep much better records of agency worker placements and to share that information between each other, which is likely to prove administratively difficult and costly.

Flexibility

While trade unions argue the legislation is long overdue, some employers’ organisations fear it could increase wage bills and reduce flexibility, while others are most worried about the extra paperwork.