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Agency worker rights should be set in comparison with staff, says gov

Should get roughly same dosh and conditions as comparable permies

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BIS recommends that the agency that supplies temporary staff records details about the new vacancy and notifies the worker if their role has "substantively changed". The draft publication, issued in April from BIS, implied that this was a requirement for agency worker suppliers under the new regulations.

"It is not enough that a line manager has changed but not the job requirements or that the agency worker has transferred between similar administrative functions or has moved within a single, relatively small business unit or has been given a different pay rate. None of these things by themselves would be sufficient. There has to be a genuine and real difference to the role," BIS said.

BIS said that the 12-week qualifying period that agency workers will have to successfully complete before being eligible for the equal rights can be stopped or paused. It said that the "qualifying clock" will be reset to zero when an agency worker starts work with another company, moves to a new role within the same company or there is a break between assignments with the same company of more than six weeks, the guidance said.

Accrual of weeks within a temporary workers' qualifying period will pause when the worker does not work for a company for a period under six weeks long, the worker is incapacitated from work or on jury duty for up to 28 weeks, or the worker is on holiday, BIS said.

A pause also occurs when the workplace closes for a planned shutdown, such as Christmas, or the worker is not able to work because of industrial action at the company, BIS said.

The qualifying period will continue to accrue when a worker takes a break from work due to pregnancy or childbirth within 26 weeks of their child being born, BIS said. Maternity leave breaks, adoption leave or paternity leave also count towards the workers' qualifying period, the guidance said.

Agency workers' rights are not retrospective so for agency workers employed on 1 October 2011, their 12-week qualifying period will start from then, the Regulations say.

The Regulations say employers must give agency workers access to facilities from the first day they are employed. BIS said that the facilities include the staff canteen and car parking, even when the facilities are not on-site, but said that companies did not have to offer "enhanced" access rights to some benefits permanent staff receive.

"For example, where membership to a crèche involves joining a waiting list, the agency workers would also be able to join the list and would not be given an automatic right to have a crèche place. Nor is it about access to off-site facilities and amenities which are not provided by the hirer, such as subsidised access to an off-site gym," the BIS said.

BIS suggested that employers provide new temporary staff with an induction pack that includes information about where they can find details about internal job vacancies. The new regulations require this information to be available to staff from their first day in the job.

"This right will not apply in the context of a genuine 'headcount freeze', where posts are ring-fenced for redeployment purposes, or internal moves which are a matter of restructuring and redeploying existing internal staff in order to prevent a redundancy situation," the BIS guide said.

An agency worker is "someone who has a contract with the temporary work agency", such as an employment contract or agreement to provide services personally, "but works temporarily for an under the direction and supervision of a hirer", the BIS guide said.

"The definition of an agency worker excludes those who are in a 'profession or business undertaking carried out by the individual' where the hirer is a client of customer of the individual (ie a genuine business to business relationship). It is still possible for someone in a profession or in a business to be an agency worker if there is no such client or customer relationship," the guide said.

BIS will publish a guide to the Regulations from an agency workers' perspective shortly.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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