Beware the Risk When Using Agency Workers

Some sectors like healthcare and construction rely on a ready supply of temporary staff, and it is a rare business that does not need to use agency workers from time to time. 

The rights of agency workers have been under considerable government scrutiny recently, and changes on the horizon will affect all those who use temps.  

Jolyon Berry, employment law expert with Thompson Smith and Puxon, outlines the current rights of  agency workers, how you can reduce your business risk and the changes to the law expected in 2020.

Agency workers’ rights

The most significant rights for agency workers:

• access to staff facilities on no less favourable terms than other comparable staff (unless the difference can be justified);
• to be informed of relevant job vacancies;
• after 12 weeks, to be able to take time off work to attend antenatal appointments or adoption placement appointments; and
• after 12 weeks, to have the same basic working and employment conditions as if they had been employed directly by the employer. This includes terms about pay and holidays. (The law is different if the worker has a permanent contract of employment with the agency).

Can I avoid agency workers getting rights?

To back up the rights that are based on a 12-week qualifying period, anti-avoidance rules apply. If an employer deliberately arranged the agency workers’ assignments so that they would be prevented from working 12 weeks continuously  the worker will be treated as having completed the 12-week qualifying period in any event. A break of six weeks or less between work assignments will enable the worker to link the assignments together when counting the 12-week period.

An employment tribunal can make an additional award of £5,000 to an agency worker, if it finds that the employer tried to stop them from completing the qualifying period.

Who is liable?

An employment tribunal may decide that the employer, the agency or both should pay damages to the worker. Liability depends on the right that has been breached and who is responsible.

The recent case London Underground v Amissah is a reminder that you should not just rely on the agency to decide if the regulations apply. London Underground initially relied on the agency’s wrong assurances that the regulations did not apply, and the agency paid the workers less than the comparable employee. Realising the error, London Underground gave the difference in pay to the agency, but the agency did not pass it on to the workers and then went into liquidation! Despite having already paid out, the London Underground was held liable for 50 per cent of the compensation due to the agency workers.

How can I protect my business?

You should have a commercial agreement with the agency which makes clear who is responsible for what in relation to each worker.

If you have not given the agency certain information the agency may be able to argue that they are off the hook if there are problems later.  

We can advise you on the information that you need to give to the agency and when to give it.

What is going to change?

The government has proposed a number of changes which come into effect from 6 April 2020. These include:

• after 12 weeks, all agency workers must be paid the same pay as comparable staff. No exceptions;
• the right to a written statement of terms on the first day of working; and
• calculating holiday pay  based on a 52 week average (instead of 12 weeks).

The government proposes other changes, which could give agency workers greater rights. These include more generous rules for employees to accrue the right to protection from dismissal; the right to request a more predictable and stable contract after working 26 weeks; and clarification of employment status. We do not know when these will be introduced, but we will keep a close eye on developments.

We can check your current arrangements to ensure that you are complying with the law and that you are minimising your liability, where possible. We can also advise you on how to prepare for the changes in agency worker rights.

For advice on agency workers or any employment law issues, please contact Jolyon Berry who leads the Employment team on 01206 574431 or email jolyon.berry@tsplegal.com. Thompson Smith and Puxon has offices in Colchester and Clacton , Essex.