The much talked about Agency Workers Regulations (AWR) comes in
to play on Saturday 1 October 2011 to a mixed reception. The
Regulations cover many points but the two main features are
discussed below.
The Regulations aim to give agency workers an entitlement to the
same basic employment and working conditions as if they had been
recruited directly by the hiring company. In effect, the
terms and conditions of another worker or employee who does
the same or a similar role. After 12 weeks of an "assignment"
the worker can request written confirmation from the agency they
were hired through as to the conditions they are entitled to. It is
important that key information on a worker is exchanged between the
agency and the hiring company to ensure compliance with the
regulations. If either fails to co-operate or provide adequate
information there is a limited defence for the innocent party if a
claim is raised.
Agency workers will also acquire 'day one rights' which entitles
them to use the hiring company's workplace's facilities and get
information on job vacancies in the company. This has caused
a furore with hiring companies as the Regulations are somewhat
vague on what is, and what is not, included. The Regulations state
that from day one of an assignment, agency workers are entitled to
be treated no less favourably than a comparable worker or employee
in relation to access to collective facilities and amenities
provided by the hiring company. 'Collective facilities and
amenities' are intended to be the sort of facilities and amenities
that are offered collectively to all or part of the hiring
company's permanent employees (as opposed to particular benefits
offered only to certain individuals). Examples include a staff
canteen, crèche or car parking facility but exclude accessing
off-site facilities that are not provided by the hirer itself, such
as membership of an off-site gym operated by a third party. This
list acts as an indication of the kind of facilities which are
included but ultimately leaves uncertainty around many "perks" such
as social events like a Christmas party or other team
events.
Hiring companies have the right to refuse access to certain
facilities but only if they can objectively justify denying such
access. Cost alone is unlikely to be a sufficient reason to exclude
a worker from accessing these facilities and, even where there is
an objective justification, workers may be entitled to partial
access to certain facilities rather than being excluded
altogether. How this will work in practice however remains to
be seen and no doubt we will see some interesting cases coming
through in the employment tribunals in the next 12 months. Watch
this space!