This mix of confidence, upturn and caution leaves employers feeling nervous about recruiting and many are turning to the use of temporary workers. This allows them to meet increased demand without the commitment of full employment with its associated costs, including those of employee protection. There can be no doubt that the flexibility this offers is massively helpful in these uncertain times.

Of course the unions have had major concerns over temporary workers being used to circumvent employment protection legislation and as a back door to reducing terms and conditions. This is no longer the case, at least to a large extent as the long-delayed agency workers regulations came in to force on 1 October 2010.

While there can be no question that temporary workers remain a valuable means of varying capacity to meet varying demand, these regulations do enable them to qualify for equal treatment to permanent workers in a number of areas. Therefore employers should review this as it may give rise to legal liability or an increase in cost as a result of obligations being met by the temporary agency.

Equal treatment
Broadly speaking, the regulations provide for equal treatment relating to working time, holiday entitlement and pay once the worker qualifies, by completing 12 continuous weeks of work in the same role. The meaning of the same role and short breaks in engagement are covered so as to prevent artificial avoidance of this qualifying period. Measuring whether terms are equal is done by means of a ‘comparator’. This must be a current employee, or the terms that would have been offered the temporary worker had they been employed directly on the day they started. It cannot be argued that someone in the role used to have better conditions; perhaps in better times. Employers and unions will likely welcome and disapprove of this in equal measure.

The other key area covered by the regulations is the right of access to facilities and amenities, which is established on day one. Examples of this would be access to canteen or similar facilities, childcare, transport services, and even the car park.

This right of access, however, means a right to be treated no less favourably, so in fact does not guarantee an absolute right of access. Temporary workers will be subject to the same conditions as directly employed staff, for example being required to join a waiting list for childcare places or entitled to a parking space on a first-come first-served basis.

Another key area employers may not consider is the right to equal access to employment opportunities. Temporary workers should have the same right to seek permanent employment within the company. In practice this means that they must be notified of any vacancies arising and not prevented from applying and being considered for those vacancies by virtue of being a temporary or agency worker. There is the potential for some latitude on this, where an employer seeks to redeploy permanent staff to avoid redundancies.

This article only scratches the surface of the implications of the new regulations, but while they are potentially wide-ranging they need not be too onerous and with proper systems the implications can be minimised; leaving temporary workers as a valuable way forward during the recovery.

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30-SECOND BRIFEING ON… TEMPORARY STAFF
• Despite genuine signs of economic recovery and improving business confidence, the media continues to focus on the difficulties the downturn is causing for companies
• The result of this is that businesses remain cautious about hiring full-time staff, preferring to take on temporary workers to meet increased demand. Temporary or agency workers provide a flexible way to increase productivity without the addition of significant long-term overheads
• The unions have had concerns over temporary workers being used to circumvent employment protection legislation. However, this should no longer be the case as regulations governing the employment of temporary
workers came in to force on 1 October 2010
• Broadly, these regulations provide for equal treatment of agency staff relating to working time, holiday entitlement and pay once they have worked in the same role for 12 continuous weeks
• The other key area covered by the regulations is the right of access to corporate amenities, which is established on day one. This includes facilities such as childcare and canteens
• Another key area is the right to equal access to employment opportunities. This means temporary workers must be notified of any vacancies arising and not prevented from applying and being considered for those vacancies by virtue of being a temporary or agency worker
• While the new regulations are wide-ranging, they should not be too onerous to implement with the right systems in place