Legislation on Temping Staff Need not be a Headache for Employers, says Law Society

From this Saturday, 1 October, temporary agency staff will be entitled to the same pay and benefits as permanent staff, after 12 weeks of employment.

The new rules, the Agency Workers Regulations, will apply to approximately 1.4 million workers in the UK. For employers, this will mean hiring staff from agencies will be more expensive and involve greater bureaucracy. But, there are options for employers to consider and with good planning, the complex new rules need not be a headache, says Eilidh Wiseman, member of the Law Society of Scotland’s Employment Law Committee.

Ms Wiseman said: “There are certain steps employers should have considered in their preparation for the new rules coming into force. Even if they haven't addressed the issue by now, the equal treatment aspect of the Regulations will not apply until the 24 December so there is time to turn this around. That said, employers should not overlook the fact that there are a number of rights known as Day1 rights which will apply from Saturday.

“Ideally by now employers should have considered the reasons for using agency workers, but also the duration of the average contract with a view to considering alternatives. Short term peaks in demand could be dealt with through overtime or internal staffing banks. Employers who need temporary labour on a longer basis may prefer to hire employees on short fixed term contracts, or make greater use of secondments. Another option is to engage contractors who – if they are genuinely self employed – are out of scope of the Regulations.”

Ms Wiseman, Head of Dundas & Wilson’s Employment team said: “At this time, employers should have reviewed their agreements with their agency and introduced a system for providing comparable pay rates when they hire a new agency worker. Large employers will want to streamline their processes for hiring agency workers and have a central system in place. They need to be able to identify whether the agency worker has previously worked for the company within a 6 week period in which case their previous engagement may count towards their 12 week continuity period.

Ms Wiseman added: “Overall we think any early issues to arise will focus on who is an agency worker and disputes over pay. Things like bonuses and appraisal systems may need extra consideration. For example, if bonuses are to be paid to an agency worker they will need some form of appraisal to say whether they meet bonus criteria. Employers may decide, however, to operate a shortened form of appraisal for their agency workers .”

Any employers who need advice in this area would be wise to consult with an employment law solicitor.

ENDS 30 September 2011

Notes to editors
The Regulations do not create employment status, so unfair dismissal, notice and redundancy issues do not apply.

Anti avoidance issues have been included to cover an employer repeatedly offering 11 week contracts to avoid the Regulations.

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Contact: Emily Young
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Email: emilyyoung@lawscot.org.uk
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