Background

The comparatively lesser rights of agency workers have historically been criticised by the Left. The flexibility of agency staff however has traditionally assisted employers and, it has been argued, it assists many agency workers who want to retain flexibility.

Many of you will have seen in the news that the Government has now created new laws to protect agency workers which were in place from 1 October 2011. In a traditional fudge, albeit some agency rights will apply from day 1, many of the more important rights to do not apply to until a 12 week qualifying period, thereby satisfying many that some flexibility still remains for employers.

An agency worker is someone who has a contract with the agency (usually an employment contract or an agreement to provide services personally) but who works temporarily for, and under the direction and supervision of a hirer. The Regulations set out the key elements required and example characteristics of an agency worker. In the motor industry, employers who make use of agency workers through traditional agency arrangements are likely be affected.

The full Regulations are complex, however the headline provision is that agency workers will have the right to the same basic employment conditions - such as pay, holidays and performance-related bonuses - as direct recruits, after 12 weeks working for the same hirer in "the same role". Other basic rights will apply from day 1. Employers should therefore review their agency arrangements to minimise risks of agencies passing on costs.

Liabilities

An Employment Tribunal can make a declarations and recommendations to remove the adverse affect to the agency worker. There are also financial awards. If an Employment Tribunal upholds an agency workers complaint, it will generally be able to award financial compensation.

The time limit for presenting claims is usually three months from the date of the infringement or detriment. This may include loss of earnings and/or compensation for being denied access to facilities. There is no maximum award, although there is a minimum award of two weeks pay which can be reduced if it is fair to do so in light of the agency workers own conduct.

Furthermore, joint and severable liabilities of up to £5,000 also exist, split between the hirer or agency, as the Employment Tribunal considers just and equitable, particularly in situations where it is proven that a prohibited structure of assignments designed to circumvent the Regulations exists.