FAQs

1. When do the Regulations come into force?

The Regulations come into force on 1 October 2011. However, time spent working before an assignment before that date does not count for the purpose of counting the 12-week qualifying period.

2. Who types of workers do the Regulations apply to?

The Regulations apply to the type of worker often referred to as 'agency temps', being workers who are placed to work in hirer organisations through temporary work agencies or intermediatory agencies (often called master or neutral vendors).

The Regulations do not apply to self-employed contractors or those employed on a service contract managed by a party other than the hirer organisation. However, they do apply to workers contracted to an "umbrella company". This means workers who work thorough a service company, but who are not genuinely self employed.

3. Will the Regulations change the employment status of agency workers?

No. The Regulations will not change the status of temporary agency workers and will not make them employees.

4. Will the Regulations give employees any rights?

No. The Regulations will not give employees any rights and therefore if an agency worker is paid more than a comparable employee, the Regulations will not give the employee the right to be paid more.

5. What rights will the Regulations give agency workers?

The Regulations will give agency workers the right to equal treatment in terms of "basic working and employment conditions", as if they had been employed directly by the hirer to do the same job. In many cases this will mean that agency workers will be entitled to the same rate of pay as a comparable employee, but they are not entitled to get to all of the terms and benefits that the comparable employee gets. For details of what the entitlements are see 6 below.

Importantly, many of the rights are subject to the worker working for the hirer for 12 weeks or more.

6. What does equal treatment include?

The Regulations will require equal treatment in respect of the 'relevant terms and conditions' ordinarily incorporated into the contracts of those working in the hirer. This means the relevant terms and conditions in collective agreements, relevant pay scales and terms generally included in employees' contracts of employment.

'Relevant terms and conditions' are defined as:

• pay
• the duration of working time
• night work
• rest periods
• rest breaks
• annual leave.

However these rights are subject to a 12-week qualifying period (see 9 below).

The Regulations also provide for equal treatment from day one in terms of access to vacancies and collective facilities. For further details see 10 below.

7. How will pay and holiday be calculated?

In the Regulations, 'pay' means basic pay, plus any fee, bonus, commission, or other payment directly referable to the employment, such as overtime or unsocial hours payments.

Bonuses do not include long-term loyalty bonuses, but do include performance bonuses. This means that some hirers will need to set up a process for monitoring the worker's performance, although will be no obligation to provide the same appraisal system as employees receive. Any 'appraisal like' system that may be set up for this purpose should not amount to evidence that an agency worker has gained employee status.

The holiday entitlement includes any entitlement above the statutory minimum requirement of 28 days per annum including bank holidays, which in most cases will mean the relevant contractual entitlement applicable to the hirer's employees. The Regulations allow payment to be made in lieu of holiday entitlement above the statutory minimum either as part of the daily/hourly rate or at the end of the assignment.

8. Does equal treatment include occupational pensions, sick pay, maternity pay and similar payments

No. The definition of pay in the Regulations excludes:

• occupational pensions
• occupational sick pay
• maternity, paternity or adoption leave pay
• redundancy pay

9. How will the 12-week qualifying period be calculated?

Any period of work (full or part-time) carried out by the agency worker for the hirer in a calendar week will make that week count towards the 12-week qualifying period.

For the purposes of calculating the qualifying period, continuity will normally be broken by a break of six weeks between assignments in the same job, or when an agency worker takes up a new role with the hirer where the whole or main part of the duties in the new role are substantially different from the whole or main part of the duties in the old role.

10. Will the 12-week qualifying period be broken if the agency worker is placed with the hirer for a second assignment, but through a different agency?

No, not unless the gap between assignments is six weeks or more or the new role is a substantially different to the first one. This is because the 12-week qualifying period is calculated by reference to service with the hirer, irrespective of which agency places the worker.

Because of this, organisations should put in place procedures with their agencies and agency workers to check whether the worker has worked for them in a previous assignment.

11. What about access to job vacancies and collective facilities and amenities?

Access to these is a 'day one' right and is not subject to the 12-week qualifying period.

The right to access to job vacancies means the right to be informed of relevant vacancies in the hirer. In practice this means that agency workers should be provided with the same vacancy lists that comparable employees receive. Agency workers will be entitled to the same access as comparable employees receive to internal vacancies. However, the hirer can still operate 'closed' processes in redeployment situations where there is a headcount freeze and consequently there are not any vacant posts.

Collective facilities include canteens, childcare facilities and transport services, and unless objectively justified, agency workers must be given the same access to those facilities as other comparable workers (not just employees) receive. BIS guidance will provide further information on what benefits may fall into the category of collective facilities and on the issue of objective justification. However, it is anticipated that transport services would not include season ticket loans and company cars, and the objective justification defence would apply where the overall terms of the agency worker's package were the same as the comparable employee's contract of employment.

12. What protection will the Regulations provide for pregnant and new mother agency workers?

Pregnant agency workers who have met the 12-week qualifying period are entitled to take paid time off for ante-natal appointments. The agency is primarily responsible for providing this right, and for paying the worker for the time off. However, local authority hirers should ensure that practical arrangements are put in place so that the worker is able to take the time off.

Hirers, as now, will be required to carry out risk assessment for pregnant workers, and where a risk is identified make reasonable adjustments to remove the risk. Where that is not possible, under the Regulations the agency will be responsible for offering alternative work, and where that is not possible, for paying the worker for the remainder of the assignment for any period that she cannot work due to the health and safety risk.

There is no obligation on hirers to keep a role open for an agency worker who is on maternity leave.

13. How do I work out what an agency worker will be entitled to?

The right is to equal treatment in respect of basic working terms and conditions as if the agency worker had been employed directly to do the same job (see question 6 above). Although in some cases that could mean a relatively speculative assessment of what those terms would be, the Regulations provide that equal treatment is deemed to have been provided where the worker receives the same relevant terms and conditions as a comparable employee working for the hirer.

14. Who will be responsible for providing equal treatment?

Responsibility for ensuring equal treatment for most of the rights will primarily be with the employment agency. However, an agency will be able to defend a claim and the hirer will become liable if the agency can show that it took "reasonable steps" to obtain the necessary information from the hirer to determine the agency workers' basic working and employment conditions.

15. How will the Regulations be enforced and what are the liabilities for non-compliance?

An agency worker will be able to bring a claim in the employment tribunals to enforce their rights under the Regulations, against the agency and/or the hirer. Compensation for a breach will be calculated by tribunals on a "just and equitable" basis, with no upper limit on awards. Liability for the award between the agency and the hirer will be determined by the employment tribunal, according to the extent to which it finds the agency and/or the hirer liable for the breach.

16. How will agency workers be able to find out whether they are receiving their rights?

After meeting the 12-week qualifying period, an agency worker can ask their agency for relevant information about the basic terms and working conditions in the hirer. If the agency fails to provide the information within 28 days of the request (or the request is about access to collective facilities) the agency worker may make the request direct to the hirer, who then has 28 days to respond.

Where the agency and/or hirer fails without reasonable excuse to respond or the response is late, evasive or equivocal, then in any employment tribunal proceedings that may follow, the tribunal can draw an inference from the failure or delay etc.

17. Will the Regulations mean an increase in the cost of agency workers who work in assignments for more than 12 weeks?

This will depend on whether the agency workers in question are paid less than a comparable employee. Where the agency worker is paid more, then the costs impact of the Regulations will not be substantial, although there will still in most cases be an increase in non-pay entitlements, such as holiday. Where an agency worker is paid less, the increase in costs will be more substantial, although there will still be savings in respect of pension and in some cases sick pay.

18. What do organisations need to do to prepare for implementation of the Regulations?

Although the implementation date of 1 October 2011 may seem a long way off, it is important to work out now what the potential impact of the Regulations will be.

Organisations should carry out an assessment of their agency worker use, looking at factors such as the normal length of assignments to see how often the 12-week qualifying period will be met. Authorities should also review their agency workers' roles to see if there are comparable employee posts, and work out whether the agency worker is paid a lower rate than the comparable employee, taking into account not only basic pay but other payments such as overtime.

Having done this exercise, it may be that any increase in costs arising from the Regulations may be less than anticipated, as in certain cases agency workers are paid more than comparable employees.