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Don’t Get Caught In The Temp Trap

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Don’t Get Caught In The Temp Trap

October 21
20:07 2013

Keeping the workplace properly manned is a challenge at the best of times, but when factors such as sickness, maternity leave and adverse weather conditions play their part to disrupt staffing levels, employers can feel compromised. The traditional remedy of taking on an agency worker used to be seen by organisations as a quick fix, but nowadays it is all too easy for the temp employees to ingratiate themselves and become like full-time members of staff.

And now, a change in the law later this year will provide most agency recruits – on completion of a 12-week qualification period in the same role – with the same basic employment rights as permanent employees.

Martin Thurston Smith outlines the new legislation and its pitfalls for employers…

While the ability of temporary staff to integrate efficiently into a new environment has its advantages in terms of learning the necessary skills and working practices for a given role, it can also raise potential issues for the companies who draft them in.

The new legislation – which comes into force on 1st October – will allow temporary staff to claim certain employment rights and working conditions that had once been the preserve of permanent employees who’d been recruited directly by an organisation.

This right to parity of treatment extends to matters such as key elements of pay, duration of working time, night work, rest periods, annual leave, equal access to childcare facilities and even paid time off for antenatal appointments.

However, while temp staff may rejoice at their new-found status and feelings of inclusion, complications could arise for employers even before they have calculated the additional financial costs these changes may bring. Indeed, the calculation for the qualifying period alone could cause enough headaches for them, as the employees won’t necessarily be required to have worked 12 ‘full’ weeks to qualify for the new benefits; time spent at work will count even if it only forms part of a normal week.

Moreover, while some changes to assignments might ‘stop’ the qualifying clock and reset it, others will merely place it on pause. For example, sickness absence for up to 28 weeks can halt the qualifying clock altogether, but it will keep ticking during maternity leave. Broadly speaking, a break for virtually any reason for up to six weeks will only cause the clock to pause rather than reset altogether.

With that in mind, prudent employers will provide recruitment agencies with up-to-date information on the working terms of permanent staff, to ensure that agency workers receive equal treatment if they think the temporary post will last more than twelve weeks.

However, it’s not all bad news for employers. There are some exceptions regarding the reach of the new legislation, providing the workers involved meet certain conditions. Those who could avoid coverage include:

Employees on secondment or loan from their usual job
‘Bank staff’ – i.e. those who work only for one employer
Self-employed individuals who find work through a temp agency and have a business-to-business relationship with the hirer who is a client or customer
Individuals under Managed Service Contracts (which can apply in hotels or catering), where the employee does not work under the direction and supervision of the host organisation
Individuals who find direct employment through an employment agency
So, what next? The Government guidance issued this month by the Department for Business, Innovation and Skills should provide some helpful assistance to employers, but even that summary guidance extends to 50 pages.

In this challenging business climate, one might question whether this additional burden on the industry will create enhanced opportunities for agency staff, or whether it will further squeeze small businesses and simply result in more workers’ rights, increased bureaucracy and, ultimately, less work for temporary employees.

This article has been edited from its original version. For the complete feature, please see Catering in Scotland magazine May/June 2011.

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