If your practice uses temporary work agencies to provide temporary cover for staff who are off sick or on holiday then you need to know about the Agency Workers Regulations 2010.
Typically in a general practice surgery agency workers will be working as receptionists and cleaners but any worker provided by a recruitment agent will be protected by the agency regulations.
An agency worker can make a claim in an employment tribunal if they are not provided with their rights under the regulations and/or for being subjected to detriment for raising rights under the regulations. As a result of the introduction of the regulations an employment tribunal now has the power to make a declaration as to the agency worker’s rights, order compensation or make a recommendation that the practice or the agency takes specific action to reduce any adverse effect.
Agency workers have been granted two types of rights by the regulations. Firstly, rights that apply from the first day of their assignment and rights that only apply after a 12 week qualifying period.
‘Day one’ rights
This part of the regulations is fairly straightforward and should be something which practices already comply with. From the start of an assignment an agency worker has the right to be told of relevant vacancies at the practice. This is relatively easy to implement and will mean that agency workers should have access to any notice boards or are included in any round-robin emails or newsletters which advertise vacancies at the practice. In addition to this, you must ensure all agency workers from day one of an assignment have access to collective facilities and amenities, comparable to other workers. For example, staff room, toilet and shower facilities and canteens must be accessible to agency workers.
The 12-week qualifying period
The regulations start to become a little trickier once the agency worker has been working at the Practice for more than a 12-week qualifying period. After this period, the agency worker has the right to the same basic working conditions they would have received had they been recruited directly by the hirer for the same job. This includes pay, working time, rest breaks and holiday pay. Now you may be thinking that terminating and re-engaging the agency worker is an attractive option to get around this? Be aware, the regulations contain anti-avoidance provisions and specifically provide rules on when a 12-week period applies.
How a practice can address this right is to either use an actual comparator (an employee doing the same or broadly similar work) or a hypothetical comparator.
For example, where you have a temporary agency worker on reception you would need to look at whether their terms and conditions are comparable to other reception staff that complete the same role. If your practice pays a Christmas bonus you may be wondering whether the Regulations require you to pay an agency worker any bonuses? Incentives which are not directly attributable to the quantity or quality of work done by the agency worker do not need to be matched.
This means a Christmas bonus to reward a whole team will not need to be provided to the agency worker. Conversely, if a bonus is attributable to individual performance then the agency worker would be entitled to receive this.
It is important that you are proactive in your approach to these Regulations to reduce the risk of any future liability. The best way to do this is to systematically consider employee’s terms and conditions and identify whether this needs to be matched for agency workers. It is important that you regularly liaise with agencies to ensure that, where possible, information is shared.
The regulations took effect from 1 October 2011 so only time will tell the impact these regulations will have on practices.
Victoria Patterson (0117 314 5387) is a solicitor at Veale Wasbrough Vizards