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James Mallick – operations director at Top Gear Recruitment – gives his opinion on the Agency Workers Regulations and the impact these could have on the recruitment sector:

For many employers, 1 October 2011 is going to be a significant date in the calendar. It’s the day when the Agency Workers Regulations (AWR) come into force and this will have an impact on employers that use agencies to find temporary workers. There are believed to be 1.6 million agency workers working in the UK each day and some sectors have come to heavily rely on this type of labour. What will the AWR mean for employers and what effect will they have on day-to-day employment practices? Will there be big changes, or is this all a storm in a tea cup?

We recently conducted a survey to find out how much is known about the AWR amongst employers across the country and to gauge whether they’re ready for the new regulations. We found that whilst 90 per cent of businesses surveyed know the rules are coming into effect in October, 40 per cent admitted they’re not sure how the changes will affect their business. If employers haven’t started to get to grips with the changes in the rules already, they really need to make sure that they do before 1 October.

One of the most significant – and most well-known – changes in the regulations is that an agency worker will now be entitled to the same basic working and employment conditions as a permanent member of staff working in & lsquo;the same’ or & lsquo;broadly similar’ capacity. However, this equal treatment only comes into effect when the agency worker has been with an employer for 12 weeks, not on the day they start. After 12 weeks of work in an assignment, agency workers will also be entitled to equal treatment in terms of working hours, overtime, breaks, rest periods and holidays.

Some employers may think that the AWR won’t affect them because they don’t employ temporary workers long enough for them to accrue 12 weeks of service, but there will be other rules that apply from a worker’s first day. For example, when beginning an assignment, a temporary worker will be entitled to equal access to collective facilities, such as childcare and transport services or a canteen.

A challenge for many businesses will be matching a temporary member of staff with the & lsquo;comparable’ permanent employee. If this is done incorrectly, it could mean that specific rights are granted or not granted mistakenly. If roles are mis-matched, this could end up costing a company time and money or lead to an employment tribunal. In this instance, employees will be entitled to any pay that would have been due and this would be on top of the legal fees and the negative publicity associated with the case.

In the case of anti-avoidance – for example, employing an agency worker for 12 weeks, giving them six weeks off and then bringing them back in – an employer could have to pay an award of up to &pound5,000 (if the only reason for that pattern of work is to avoid the individual getting equal treatment).

A potential impact of the new regulations could be that employers no longer use agency workers – one in 10 employers surveyed said they would be less inclined to hire temporary labour as a result of the new employment law. It could be argued that these employers are nervous about using agency workers as they feel they don’t fully understand the new regulations and don’t want to be penalised for unintentional non-compliance.

Not using agency workers because of the new regulations would be a drastic step to take and could have a devastating impact on companies that have come to rely on using them, particularly during peak seasons. Although understanding the legislation may seem daunting, support and guidance is available: advice has been issued by the Department for Business, Innovation & Skills (BIS) and employers can always approach recruitment companies for more information on the implications of the new rules.

With busy schedules and the running of a business to contend with, employers may have put off getting to grips with the AWR. However, with the legislation coming into force in a matter of weeks, companies cannot afford to avoid the issue any longer.


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