Thread: Agency Workers Regulations Advice- Which is the comparator?

Hi,

I'm in HR in warehousing and distribution. We use around 30 agency workers from September to January to cope with the increase in work. It makes sense to keep the same temps where we can because our induction and training is costly.

Our perm warehouse operatives receive an increase in hourly pay (£1.00 extra per hour) on successful completion of their probationary period (16 weeks employment). They are also included in the bonus scheme after this time.

If we use agency worker warehouse ops, is the lowest paid operative in our organisation deemed to be the 'comparator'? If this is the case, will they be entitled to the higher rate after 16 weeks if we kept the same people on to work the whole peak period which is approx. 20 weeks.

From everything I have learned, next year we will recruit our own bank of operatives on zero hour contracts but we have left it too late this year.

I look forward to your help. Many thanks in anticipation.

Dear HR Superstar

My understanding of the new Agency Workers Regulations is the comparator you use to define if the job is the same or similar is an assessment using the skill set required to do the job and the nature of the work and the duties they carry out. Therefore, if the temps are doing the same job as a permanent employee they must not be treated less favourably to your permanent employees after they have worked for you for 12 weeks in the same role.

The Regulations state that their employment must be no less favourable than the terms they would have been entitled to had they been hired directly by the organisation for which they are working but equal treatment will apply only to certain terms and conditions relating to working time, holiday entitlement and pay.

Therefore, if you continue to use the temps over 11 weeks after 1 October you will need to apply the same payments to them, i.e. £1 increase after successful probationary period of 16 weeks. You seem to imply that you have operatives on different scales, therefore you will need to do the comparator as mentioned above because the temp could make a claim that they undertook work the same as operatives on different scales.

However, it is my understanding that they are not entitled to discretionary or non-contractual bonuses that is not paid as a matter of custom and practice or that reflects long term performance or reward loyalty. You did not say what the bonus terms were to fully answer this for you.

As you know this legislation is untested as its not in force yet and some of the Regulations are not clear. However, until there is more clarity, this is going to have an impact on your business and no doubt there will many ET claims as a result of misunderstandings of the Regulations. Also, the Government seems to now suggest that they want a review due to the negative impact these Regs will have on companies with a view on removing some of the previsions, so watch this space!

I hope this helps - there is a factsheet you could review for further info. http://www.hrsolutions-uk.com/attachments/AgencyWorkersFactsheet(HRSolutions)V1.0.pdf

Best wishes

Carol

Thank you for clarifying this for me Carol. Much appreciated

The way I see it is the new regulations aim to ensure an agency worker is engaged on the same terms and conditions as a "comparable employee", ie. On the same terms and conditions as if directly recruited into the role by the hirer.

An employee is a 'comparable' when both the employee and agency worker are working for and under the supervision and direction of the hirer, and both employee and agency worker are engaged in the same or broadly similar work.

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