Food for thought

Do you use agency workers? If so, you will need to be aware of changes coming into force in October 2011 as a result of the Agency Workers Regulations 2010 (the Regulations). The new legislation will require a different approach by employers - and manufacturers need to understand the potential impact of the legislation and ensure they are prepared to make any necessary changes to their practices and procedures in good time rather than at the last minute. The Regulations are lengthy and very detailed, but in essence they give agency workers three key new rights. Firstly, agency workers will be entitled to the same 'basic working and employment conditions' as employees at the company in a same or 'broadly similar' role. These conditions are defined as terms relating to pay, working time, night work, rest periods and annual leave that are ordinarily included in contracts of employment of the comparator employee. 'Pay' includes overtime pay, shift allowances and premiums for unsocial hours, as well as certain bonuses. By contrast, pension and sick pay schemes, redundancy and maternity schemes, share schemes and profit-sharing schemes are all excluded. This right kicks in after the agency worker has completed a 12-week qualifying period. Secondly, the legislation provides agency workers with certain rights from day one - no less favourable access to collective facilities and amenities, for example, such as canteens, changing facilities and certain transport services such as transfers between sites and local pick-ups. Thirdly, agency workers will have the right, from day one, to be afforded the same opportunities to find permanent employment with the company as its own employees. The Regulations will not affect the employment status of agency workers, and so cannot be used by such workers as a conduit to gain rights dependent upon being an employee, such as the right not to be unfairly dismissed. There are several issues that employers should consider now. As a starting point, calculate how many agency workers are used, the areas in which they work, and the length of time and key periods when they are used. For example, some companies use agency workers on an ad hoc basis, whereas others use them regularly to meet seasonal peaks. Companies need to understand the various reasons for using agency workers; HR departments could usefully open dialogue with individual line managers to establish this. For example, are agency workers used to cover staff absence, to save on overtime costs, or because the business is under-resourced? It is also important to establish the advantages (flexibility, for instance) and disadvantages (taking a long time to get up to speed) to your business of using agency workers. Manufacturers should also take this opportunity to review relationships with agencies. For example, are different agencies instructed? Dig out the commercial terms that govern the relationship with the various agencies. Also, identify which managers authorise the use of agency workers and who, in practice, actually instructs the agencies. If an agency worker is required for longer than originally anticipated, what are the mechanics for making that happen? Also, employers need to establish which basic terms are currently offered to new starters for various roles across the businesss, such as pay, holiday entitlement and bonus. This will ensure the information is on hand to provide to an agency, and will enable an estimate of additional cost for providing these same terms to agency workers who meet the 12-week qualifying period. It could be worth introducing qualifying periods for new starters before they acquire certain benefits. Which employment terms or collective facilities are currently made available to employees and how difficult or costly will it be to extend access to these to agency workers from day one? Think, in particular, about access to canteens, changing facilities, car parking spaces, childcare and transport facilities. You may already have waiting lists in place for employees for over-subscribed facilities such as a crche which could apply equally to agency workers. Finally, do you already make details of vacancies available to agency workers? If not, how are you planning to do this in the future? For example, could you place details on a noticeboard in the workplace that everyone - employees and agency workers alike - has access to? An audit of this kind is an important step to enable manufacturers to review the rationale for using agency workers, to look afresh at their relationships with agencies and to ensure they are well-placed to comply with - and minimise any adverse effects of - the forthcoming Regulations. Vanessa Webster is a principal legal adviser at EEF: www.eef.org.uk