From 1 October 2011 agency workers gained the right to be treated in the same way as any employee employed directly by the care provider. The exact impact of these Regulations remains to be seen but suggestions are that they will increase staffing costs for care providers and could even lower the standard of care provision.
To comply with the Regulations agency workers must receive the same basic working and employment conditions as they would had they been recruited directly by the hirer. These conditions include pay, working time, rest breaks, annual leave, bonuses, access to facilities and amenities, and access to employment vacancies. Some rights are specifically excluded from the Regulations and these include sick pay, redundancy pay and bonuses paid regardless of amount of work done.
With the exception of the rights of access to facilities and access to employment vacancies, which start from day one, the right to equal treatment is subject to a 12 week qualifying period. Any provider who utilises agency workers on a short term basis will encounter minimal impact. Those who use agency workers on a longer-term basis will face increased costs and as such will have to make some difficult business decisions. Any hirer found to be deliberately acting in a way so as to avoid the Regulations can face a £5,000 fine, for example if they were to continually use the same worker for 11 week periods of time before providing them with a different role or re-hiring them after a week off.
It is possible to avoid these increased staffing costs legally. Care providers could stop hiring agency staff on a long term basis, amend their employee’s terms and conditions to match those of the agency workers (although this would involve a complicated process of variation of contracts and considerable upheaval of the existing workforce) or look to use alternative methods of staffing such as current staff working overtime or using casual employees.
As well as increased costs or the need to restructure their workers and employees, employers could also see a reduction in the number of agency workers working for periods of over 12 weeks and a consequent reduction in continuity of care. Whether these will combine to lead to a reduction of the quality of care provision as a whole, only time will tell; individual providers who are likely to be affected will need careful planning to prevent these Regulations indirectly lowering their own standard of care.
