New guidance for agency workers emphasises employers must pay promptly

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Words courtesy: Dawn Lewis for: People Management

The Advisory, Conciliation and Arbitration Service (Acas) has updated its guidance on agency workers after finding that one in four calls they make to its helpline are focused on not being paid properly, with many unaware of their rights.

The new advice, which is aimed at all those involved in agency worker engagements, offers detailed information on payments and agency workers’ entitlements.

In particular, it reminds agencies employing such workers that they must pay them even if the agency has not received payment from the employer, and encourages workers to ascertain what their employment status is.

The ability to discern whether someone is a worker, employee or self-employed is an essential first point to understanding their rights to pay, holiday and other entitlements, the guidance states.

“It is clear that there are agency workers who are unsure about their rights at work. This can leave them unsure about their entitlements on pay, working hours and time off for holidays and sickness,” said Tom Neil, Acas senior guidance adviser.

“Our new advice is an easy-to-understand guide that’s designed to explain how the law applies to agency workers now.”

The guidance also offers much-needed clarity around the 12-week qualifying period, after which agency workers are legally entitled to the same basic pay and conditions as comparable employees in the organisation.

Agency workers are often at a disadvantage to their employed counterparts because they lack the security of full employment and can be engaged on poorer terms and conditions, as a result of being employed by an agency rather than than directly.

Although, in theory, the 12-week qualifying period should reduce this situation, a recent TUC report suggested that employers continued to take advantage of the ‘Swedish derogation’ loophole to undermine pay levels for agency workers.

The government-commissioned Taylor review highlighted many of the complications of agency worker rights, including the issues of determining worker status and working arrangements that involve umbrella companies. In its response, the government promised to consult further on the problems facing the industry.

The Association of Professional Staffing Companies (APSCo), which provided input to the new guidance, said it indicated the current appetite for greater transparency around employment status and the rights and limitations associated with different working arrangements.

“Clearly, there is a need for greater clarity in this area, which these new guidelines should ultimately provide,” said Samantha Hurley, operations director at APSCo.

“We are always supportive of initiatives that endeavour to provide clear information and guidance for the benefit of not only the wider recruitment profession, but also employers, candidates and other stakeholders.”

A recent Office for National Statistics Labour Force Survey suggested that the total number of agency workers in the UK is currently around 865,000, which is expected to reach one million by 2020. During the November 2017 to January 2018 period, there was an estimated 1.55 million temporary workers in the UK, making up 5.7 per cent of the total workforce.

Hannah King, employment lawyer at BP Collins, said: “While the updated guidance Acas has issued goes some way to providing clarification on some of the basic rights of agency workers, as was clearly identified by the Taylor review, there are some fundamental issues with how the agency worker business model is sometimes operated from the outset.”

The Taylor review made several recommendations to improve the transparency of agency workers’ rights. These included a right to a written statement of terms, an itemised payslip, the right to request a ‘more predictable contract’, extending the pay reference period for calculating holiday pay from 12 to 52 weeks, and improving the information given to individuals when registering with an employment business.

A consultation is currently being run by the government on these proposals, closing on 9 May.

“These recommendations – if implemented – will go much further to ensure that agency workers are provided with clearer information about their basic rights and entitlements to enable them to properly identify if there have been any breaches of these rights,” said King.


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