Whilst the Employment Rights Bill continues on its progress towards becoming law, one of the more recently added provisions will place increased obligations on employers who make use of agency staff.
At present, agency workers have certain rights arising from existing legislation - most of which rest with the agency itself - including that after 12 weeks in the same role with the same hirer, agency workers are entitled to the same basic pay as direct employees doing similar work.
Under provisions that were already in the Bill, direct employees with zero hours or low hours contracts will have the right to receive a contract with guaranteed hours reflecting the hours regularly worked during a reference period. They will also have the right to reasonable notice of shifts and a right to payment for shifts cancelled or curtailed at short notice.
The government has conducted a consultation on whether to extend these provisions to agency workers and published its response in March. The outcome is that the Bill will contain amendments to extend the provisions to cover agency workers. Under those amendments:
- It will be the responsibility of the end hirer to make the offer of guaranteed hours.
- It will be the responsibility of both the agency and the end hirer to provide reasonable notice of shifts.
- It will be the responsibility of the agency to pay any short notice cancellation payments to workers.
- Agencies will have the right to recoup the cost of any short notice cancellation, movement or cancellation payments from the end hirer.
Whilst the detail is yet to be determined, it is clear that the government is extending its stated aim of ending one-sided flexibility to agency workers and this will give cause for employers to reconsider when and how they are used.
It should be borne in mind that for both direct employees and agency workers, even where there is a regular pattern of work there can still be a contract with no guaranteed hours where that is what both parties want.
As with most of the other changes in the law contained in the Employment Rights Bill, it is expected that these measures will not take effect until 2026 at the earliest.
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