Regulations

Two sets of regulations govern working with employment agencies and candidates placed through them. The Conduct of Employment Agencies and Employment Businesses Regulations 2003 cover working with agencies, while the Agency Workers Regulations 2010 cover the rights of workers employed via agencies. Conduct of Employment Agencies and Employment

Businesses Regulations

This legislation protects hiring organisations from excessive charging by agencies; ensures the agency works to find the right person for an organisation’s requirements; and promotes flexibility and increased protection for workers who find employment through agencies and for hiring organisations using them for permanent recruitment or temporary cover.

Randstad has long been a leader in this field and its practices in safeguarding the rights and freedoms of temporary workers and permanent candidates.

Agency clients’ rights

The rights of client users (i.e. hiring organisations) under these Regulations are:

• agencies must inform clients/users of the procedure it follows if a worker is unsatisfactory before it starts acting for the organisation

• agencies are obliged to tell users about all charges they will incur

• all terms and conditions between the agency and user must be in a single document, which must be presented to the user as soon as possible after introduction. This can be in the form of a business letter

• no worker is to be introduced unless the employment agency or business has confirmed the identity, qualifications, experience and willingness of the worker to accept the position

• where the role requires professional qualifications or involves working with vulnerable people, the employment agency has to obtain copies of the relevant qualifications and two independent references, willingly given.

‘Temp to perm’

Clients also have the right not to be charged if they permanently take on ! the temporary worker supplied by the agency (‘temp to perm’ fees) unless the transfer takes place within 14 weeks of the start of the first placement, or if it takes place within eight weeks of the end of the placement.

Where an employer wants to make a transfer within those times but does not want to pay a flat fee, the agency must offer an extended period of hire for a ‘reasonable’ period, when the worker will continue to be on an agency contract before transferring to the hirer’s employment. The time spent on the extended period of hire will usually enable the agency to recover the fee.

Agency Workers Regulations

Agency workers are a useful resource for employers to ‘fill the gaps’ temporarily without having to go through full recruitment procedures, and up to 5% of the UK workforce (1.5 million people, the highest figure in Europe) are supplied as temporary workers by agencies. The genuinely self-employed are not covered by these Regulations although contractors working for umbrella organisations are covered.

The Agency Workers Regulations (AWR), which came into force in October 2011, applies to temporary workers’ basic working rights such as pay, overtime, working time, access to training, and collective facilities such as childcare.

Under AWR these rights are split into two: ‘day one’ rights, and rights acquired after 12 continuous weeks (or the ‘qualifying period’) in a role, whether full or part-time.

Day-one rights include:

• access to vacancies

• access to staff restaurant/canteen access to staff parking

• access to staff transport

• access to staff nursery/crèche.

• Twelve-week or qualifying period rights include: parity on base pay

• comparable holiday

• overtime/shift allowances

• commission bonus payments.

Equal treatment does not cover profit-sharing payments or occupational social security schemes such as redundancy, maternity and pension provision.

Impact of AWR

When the regulations came into force Randstad’s navigator report found that 78% of hirers were already supplying day one benefits, or had been easily able to do so, with parking and access to vacancies the most challenging benefits to supply.

Hirers found it much harder to provide the 12-week rights than day- one rights, with parity on base pay, comparable holiday and bonus particularly challenging, according to the navigator report. Bonus payments also appear to represent a great deal of effort for little return as they were not valued as highly as parity of pay.

CIPD research indicates that two-thirds of organisations who decreased their use of agency staff had done so because of the introduction of AWR. However, research from REC found that 47% of those surveyed said that although there had been some impact from the regulations, it had not fundamentally changed the way they used agency staff.

Equal treatment

After 12 weeks in the same role, agency workers also have the right to request written information from the agency, and subsequently the hirer, about any aspect of equal treatment which they believe they are not receiving. Responses must be made within 28 days of receipt of the request.

Agency workers can complain to a tribunal if they feel they are being rotated between assignments to avoid reaching the qualifying period in any role, e.g. they are given a series of 11-week assignments. Fines and compensation will be payable if such avoidance is identified.

The agency will be liable for any breach of equal treatment for which they are responsible, but will have a defence if they took ‘reasonable steps’ to obtain the information from the hirer or ‘acted reasonably’ in determining the agency worker’s basic working and employment conditions.

In this context, the regulations define a ‘hirer’ as “a person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person”. However, an Employment Appeal Tribunal decision in December 2013 ruled that ‘temporary’ worker meant ‘not permanent; provisional’ or ‘lasting only a short time’, and that AWR does not provide protection to individuals merely because they are engaged by one party to work under the supervision and direction of another; they must be supplied ‘temporarily’ and not permanently.

The Department of Business, Innovation and Skills has published Agency Workers Regulations: Guidance, which can be downloaded from its website www.bis.gov.uk