If you’re thinking of hiring temporary staff, then this article will prove useful to you.
Engaging temporary workers on a fixed-term basis is a useful tool for businesses during busy periods or when it’s unclear whether there will be ongoing work.
Paying an agency to find workers for you and organise them can take the responsibility off you, both in terms of legal liability and time spent on job applications. However, employers do need to be aware of the law surrounding temporary workers to ensure workers’ rights are upheld. Businesses should also factor in the agencies fees when deciding whether to hire temps.
Types of temporary contracts
There are several types of temporary workers and not all will have contracts covered by the Agency Workers Regulations 2010 (the Regulations).
A temporary worker can be someone who is engaged by an agency but carries out work for another employer, or can be someone who works on a freelance, casual or fixed-term basis for an employer (not through an agency).
The Regulations cover “temporary agency workers”. This includes workers who are supplied by an agency but the actual work carried out is under the supervision of another employer. Temporary workers who are engaged to work for the agency are also included. If the temporary workers are engaged through an agency, you will need to forward information about pay and working conditions to the agency.
If you engage workers on managed service contracts, those who are self-employed, or, temporary workers who are not supplied through an agency, those workers will not be covered by the Regulations.
The Agency Workers Regulations 2010
These Regulations provide that temporary workers are entitled to certain minimum employment rights from the first day they start working for you. Upholding these rights is the responsibility of the employer, not the agency. These rights include:
- the right to access communal employee facilities, for example, carparks, toilets, workplace crèche, subsidised transport, canteen and break room
- the right to be informed of internal vacancies in the business which may be suitable for them (i.e. temporary workers should have the same access to this information that permanent employees have)
- the right to not work more than 48 hours per week unless by prior arrangement
- the right to equal working conditions
- paid annual leave entitlements
After 12 weeks, temporary workers gain the entitlement to the same or no less favourable treatment as comparable employees with regards basic employment and working conditions.
This includes the right to equal pay. The right to equal pay means the worker must be paid the same as if they were an equivalent permanent employee. Put simply, temporary workers can only be paid less than equivalent permanent workers for the first 12 weeks, but they still must be paid at least the national minimum wage. Pay includes salaries, wages, holiday pay, overtime pay and ability to earn bonuses.
Working conditions refers to matters such as rest breaks, duration of time worked.
Liability for failing to uphold the 12-week right is with the agency, unless the employer has provided incorrect information to the agency. If you are engaging a ‘pay between assignments’ temporary worker, be sure to treat them as you would a regular employee for the avoidance of doubt.
Calculating the 12 week qualifying period
The 12 weeks qualifying period mentioned above doesn’t need to be continuous. It’s important that the 12 week calculation is done correctly, so you can be sure you are sending the right pay information to the agency.
The 12 weeks also starts again if the worker moves to a “substantially different” role. Time off for pregnancy, maternity leave (of up to 26 weeks), adoption leave and paternity leave do count towards the 12 weeks (but there is no statutory entitlement to this leave for agency workers). If a worker is on one of these types of leave for more than 12 weeks, they will be eligible for the 12 week qualifying period when they return to work.
Entitlements of temporary workers compared with permanent employees
Generally, employers have far greater obligations towards permanent employees than temporary workers.
Temporary workers can be dismissed without notice or good cause, do not have to be paid redundancy pay and do not have to be provided with the terms and conditions of their employment. They are also not entitled to statutory maternity, paternity or adoption leave – these types of leave need to be agreed separately with the worker.
However, temporary workers have same rights akin to those of permanent employees such as not to be discriminated against on the basis of age, sex, religion, race, sexuality or disability. Employers also have the same health and safety obligations towards workers as they do towards permanent employees to ensure they are providing a safe working environment.
What employers need to be aware of when hiring temps
- There are anti-avoidance provisions in the Regulations which prevent employers making structuring decisions which would prevent temporary workers from acquiring the 12 week qualifying period right.
- If a temporary worker is engaged on a four-year fixed-term contract (or has had successive temporary contracts for four years) and that contract is renewed, that worker is to be treated as a permanent employee. This is due to the requirements of the Fixed Term Employment (Prevention of Less Favourable Treatment) Regulations.
- Employees need to be especially careful that workers are not made to do tasks without proper training so they do not create a risk to the health and safety of themselves, other employees and customers.
Sometimes, temporary workers can become employees of the business they are supplied to. If so, the employer has greater obligations to that individual.
Working out when the transition from temporary worker to permanent employee took place involves looking at the individual circumstances of the worker. Regardless of whether the person is labelled a “temporary worker”, they can still be an employee if:
- there is mutuality of obligation between the individual and the employer
- the individual could not send a substitute to do their job
- the individual is integrated into the permanent workforce
- the employer controls what the individual does and how they work
- the duties of the individual and terms of employment are akin to permanent employees
Employers can take steps to ensure temporary workers do not become employees. Temporary workers should be allowed more flexibility in their day to day tasks and hours worked and should not be referred to as staff or employees. The length of time temporary workers are engaged can influence the obligations and relationship formed between the worker and business.
Saracens Solicitors has a dedicated team of employment solicitors. We are committed to ensuring our clients understand their obligations to workers. We utilise our experience and knowledge of employment law to provide high-quality legal advice to our clients so that you can make the best decisions for your business.
If you are seeking legal advice on hiring temporary workers, please call us on 020 3588 3500 to speak to one of our employment solicitors.
Do you have any thoughts on this piece or experiences of hiring temporary workers you want to share? We would love to hear your comments, so please feel free to comment below
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