As is well known, with effect from 1 October 2011 new regulations come into force to prevent discrimination against agency supplied temporary workers. Under the Regulations agency workers will be entitled to the same basic treatment as directly employed workers once they have completed a qualifying period of 12 weeks in a particular job. This will apply in respect of basic employment and working conditions, notably pay and working time.

The UK regulations are required by EU rules (the 2008 EU Agency Workers Directive). The Coalition Government said in autumn 2010 that it would not “gold-plate” EU directives but also said it had no plans to make changes to the 2010 Agency Workers’ Regulations introduced by the previous Government. The regulations will thus go ahead to come into force as planned on 1 October 2011.

In early April 2011 the government published draft guidance to the regulations. A final version of the guidance is expected in early May.

The draft guidance says that an agency worker (often referred to as a ‘temp’) is someone who has a contract with an employment agency but works temporarily for and under the direction and supervision of a hirer. An important section of the draft guidance explains that certain categories of worker are likely to be outside the scope of the regulations (of course the courts and tribunals will have the final say on this) suggesting that the following will NOT be covered by the regulations:

• individuals who find permanent employment with an employer through an “employment agency”;
• individuals who find work through a temporary work agency but are in business on their own account;
• individuals working on Managed Service Contracts where the worker does not work under the direction and supervision of the host organisation;
• individuals working for in-house temporary staffing banks where a company employs its temporary workers directly (and they only work for that same business or service);
• individuals who find direct employment with an employer through an “employment agency”; and
• individuals on secondment or loan from one organisation to another

The draft guidance makes it quite clear that the regulations are NOT retrospective. The 12 weeks’ qualifying period cannot start before 1 October 2011.

There will be various “tricky areas” on which it would be prudent for employers to take expert legal advice. These include:

• Bonuses. While basic pay is clearly covered by the regulations, the position is not so straightforward when it comes to entitlement to bonuses.
• Absences. First, their effect on calculating the 12 week qualification period if they take place during that period and, second, their effect if they are related to maternity leave.
• Working and employment conditions. While it is easy to say that these must be the same as they would be if the worker had been directly employed by the employer rather than supplied through an agency, it will be tricky to know exactly what is required if there is no directly comparable worker.

As noted above, the final version of the guidance is expected in the near future. Employers who are likely to be affected, as well as employment agencies, should take care to ensure that their practices are consistent with the requirement of the Regulations and guidance in good time for their coming into effect on 1 October. If this is relevant for your business (bear in mind that it applies to nearly all “temps”) then make sure that you contact us.