By Liz Iles, Senior Employment Consultant at Croner
One of the frequently asked questions we hear about the new Agency Workers Regulations that came into force at the start of October is “Do the rules apply immediately to agency workers who are already placed with us and may already have served in excess of 12 weeks in their existing agency assignment?”
Any agency workers working for you (the hirer) on or after 1 October 2011 have immediate access to “Day 1 rights” under the Agency Workers Regulations. These rights are not subject to any qualifying period and will apply from the start of the assignment, as the name suggests, or 1 October 2011, whichever is later. Day 1 rights include the right to be told of vacancies within your organisation, so the individual is afforded the same access as a comparable worker to find permanent employment at your establishment, and to be given comparable access to collective facilities and amenities, eg canteens, childcare, gym facilities and parking that a comparable direct employee of the hirer would get.
Once the agency worker has been with you for 12 weeks after 1 October 2011 (regardless of any time they may have been placed with you prior to that date), the agency worker will be entitled to the same basic working and employment conditions as if they had been recruited directly on day on of the agreement; this being in relation to the same pay, duration of working time, night work, rest periods and annual leave.
The following payments are expressly excluded by the regulations and therefore will not apply to agency workers with the required service: occupational pension contributions; redundancy pay; notice pay; company maternity, paternity or sick pay schemes (statutory payments are not affected); most benefits in kind (eg company car allowance, life insurance, discount for purchase of company products); travel expenses and share ownership schemes. As the hirer, you will be responsible for ensuring compliance in respect of Day 1 rights, and any breach should be brought to your attention directly by the agency worker in a written request for information. However, the temporary work agency is initially responsible for ensuring all other rights under the regulations have been complied with.
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