FAQs

Q: What do I need to know about employing Agency Workers?

A: Despite last minute questions asked by David Cameron, and concerns that the added costs will impact badly on businesses, the Agency Workers Regulations came into effect on 1 October 2011.

The intent is to ensure that after a 12 week qualifying period temporary agency workers receive the same working and employment conditions as someone directly employed to do the same job. The Regulations are not retrospective, and all agency workers will begin their qualifying period after 1 October 2011 (so the first 12 weeks ends on 24th December 2011).

The provisions cover benefits such as remuneration, paid holiday, working hours, overtime, bonuses and commission, maternity and anti-discrimination provisions. It may also include pension contributions. Agency workers must also have equal access to employment opportunities, collective facilities and training. In general terms, those items that are included in standard contracts and associated handbooks, or custom and practice.

An agency worker is one who is supplied by an outside agency, with whom the worker’s contract of employment is made, for temporary work under the supervision and direction of another organisation. If the agency is responsible for delivery of a service and retains supervision and direction of the workers, they are not classified as agency workers under the regulations.

Agency worker entitlement will be with respect to a comparable employee engaged in the same or broadly similar work (this could include qualification and skills).

From the first day agency workers must be given the same access to ‘collective facilities and amenities’, such as canteens, child care facilities, transport services, parking etc. They must also have access from the start to relevant employment opportunities (e.g. adverts for internal vacancies).

The Qualifying period is 12 weeks, or part weeks, in the same role with the same hirer; a change to work or duties forming the main part of a role must be substantively different for the clock to begin again. Alternatively, there must be a gap of six weeks before returning to the same role for the qualifying period not to be continued. Any hirer suspected of manipulating this may be taken to ET. Continuity of the 12 weeks is not broken by planned workplace shutdown for holidays, strikes or industrial action, nor by the worker’s annual leave. Maternity, adoption or paternity leave, do not break the continuity, but the assignment need not be kept open for the worker in these circumstances.

Bonuses may cause difficulties if appraisal is needed, since this could be considered an indication of employment. In this case a specific procedure would be necessary to avoid difficulties. For example, setting targets for an agency worker to meet in order to qualify for a bonus.

Full guidance on the Agency Workers Regulations [PDF, 335kb] can be found on the Department for Business, Innovation and Skills website.

Q: What do I do when I receive an Employment Tribunal Application (ET 1 Claim) from an employee or ex-employee?

A:  The first reaction by managers or business owners is to panic. Try to avoid doing so. It is important to read the documentation carefully. You will have 4 weeks in which to respond. You should read the ET1 to see if there are any inaccuracies (dates of employment, wages etc).

You may be given a date for the Tribunal hearing with your letter. If you and your witnesses are unable to attend the date given, you must contact the Employment Tribunal service as quickly as possible to re-schedule the hearing.

Once you have read the ET1 in depth, find any information you have relating to the case and then it is best if you complete the ET3 (the response to the claim) on line. You will be given details of how to do this in the information booklet.

The most important element of the ET3 is that it reflects your understanding of events. There is plenty of space to put in as much detail as you think is necessary.

If you feel too nervous to complete it yourself on line, you can email what you propose to write to an employment lawyer or HR professional so they can support you.

Once you have submitted the ET3, you will need to prepare for the case. . It is very important to follow exactly the instructions that you received with the original documentation. There is plenty of guidance on the internet to help you prepare if you don’t have a representative.

There is guidance on the Business Link website, here.

 Q:  I believe a member of staff has stolen from me, what do I do?

A:  It is vital that you read your own disciplinary procedure and use it. Usually allegations of theft will fit within gross misconduct. If you have an allegation of gross misconduct it is advisable to suspend the individual on full pay while you conduct a full investigation. If your policy contains timescales, ensure you are aware of them.

ACAS has clear guidance on managing disciplinary situations, and it is important to read the guidance before you act if you do not manage disciplinary situations regularly.

Ideally, you should have one person investigating the allegation and a different person who will make any decision regarding disciplinary action following a hearing.

If you are a small business, you may want to include an independent person in the process of investigating or decision making, as long as you believe they will be objective. That person may be an HR professional, or someone from another business that you trust.

If, following an appropriate investigation and a thorough hearing, it is decided that the allegations are upheld, you may find that summary dismissal (dismissal without notice) is appropriate. If there are mitigating circumstances, you may also want to consider an alternative such as a final written warning. You will need to use your disciplinary policy as a guide to any actions taken.