Sarah Chilton: Now it’s agency workers winning equal job rights

Just as employers may have thought there was no room for further worker-friendly employment legislation, from the start of the month they must now face up to the fact that all agency workers who have completed a minimum of 12 weeks in the same role have become entitled to the same “basic working and employment conditions” that they would have enjoyed had they been directly recruited by the company or public organisation hiring their services. This means that any agency workers who considers they have been treated less favourably than someone recruited directly, may now bring a claim to an employment tribunal, which can award compensation if the claim is upheld.

So what sectors of business are likely to be most affected by these changes? Those companies who use the services of agencies providing cleaners and other services including catering and administrative functions immediately spring to mind but it would be a mistake to surmise that the new legislation will be largely confined to this category.

Rather than relying on permanent staff, hiring workers – at various levels of remuneration – has become increasingly “time-limited” and in some respects, the move to give equal rights to agency staff is an understandable reaction to this trend. Indeed one area in which agency workers are currently widely used is the financial services sector.

There, re-structuring is being largely carried out by people hired as “contract” or agency workers because bosses don’t want to increase their workforce, only to reduce it again at the end of a restructuring process. As for an interpretation of the rules, from now on any whole or part week, during which an agency worker is engaged on an assignment, is counted as a calendar week for the purposes of fulfilling the requirement of the 12-week qualifying period.

Employers who have still to fully study the legislation may also be surprised at how “flexible” this qualifying period is – in favour of the worker. This 12-week period will not be deemed to have been interrupted even if the worker is away from the place of employment for relatively long periods, which include: taking a break, for any reason, of up to six calendar weeks or up to 28 weeks if incapable of working because of sickness or injury; taking any holiday entitlement; being called for jury service; or taking strike action (or being locked out) as the result of an industrial dispute.

Neither will the qualifying period have been interrupted if the worker takes maternity, adoption or paternity leave and is away from the workplace for up to 26 weeks after childbirth. Continuity of this 12-week period will be deemed to have been broken only in a few circumstances – i.e. if the worker remains with the same hirer but is then engaged in a substantially different role; starts a new assignment with a new hirer; or there is a break of more than six weeks between assignments with the same hirer.

There are even “equal rights” with no qualifying period and to which agency workers are now entitled from day one of being engaged. Consequently, the hiring organisation must now ensure that all its agency workers are able to access its collective facilities and amenities and that they also have access to information about its job vacancies from the very start of their assignment.

Although legislators have been at pains to stress that the new laws do not give any additional privileges to agency workers over employed staff, businesses that have not already done so will need to review their current employment policy, given the trend (at least in the private sector) for more roles to be carried out by workers brought in temporarily through agencies rather than directly recruited.

• Sarah Chilton is a senior solicitor with Murray Beith Employment, based in Edinburgh.