Agency drivers to the rescue? What hauliers need to know

As most hauliers are aware, the UK is experiencing a shortage of licensed and qualified HGV drivers, and there are no signs of the situation improving any time soon. It is predicted that, if the current trend continues, there will be a shortfall of approximately 150,000 drivers by 2020, and hauliers need to plug the gap somehow.

Various reasons have been cited as the cause of this shortage, including an ageing workforce, higher demand for drivers due to economic growth, and the perception that the transport industry is one that requires long hours but is poorly paid, making it undesirable for many job seekers. The effect is being felt throughout the industry and hauliers need to find a way to fill a gap in their workforce quickly, especially with the peak period upon us.

If operators are thinking of using agency workers as a short-term solution, it is paramount they know how to stay on the right side of the law.

What is an agency worker?

Agency workers are supplied by a temporary work agency to carry out work for a third party (an ‘end user’), usually for a short period of time.

The Agency Workers Regulations 2010 are in place to govern the relationship between an operator, the temporary work agency and the worker. The regulations do not apply to temporary workers engaged directly by an employer, employees or self-employed subcontractors.

The regulations entitle agency workers to certain rights, which include:

• paid annual leave, rest breaks and limits on working time under the Working Time Regulations;
• no unlawful deductions from wages;
• the National Minimum Wage under the National Minimum Wage Act 1998;
• discrimination rights under the Equality Act 2010;
• protection of health and safety at work.

From their first day working for any company, an agency worker will be entitled access to the same facilities and amenities as employed staff. This includes car parking, canteen or similar facilities, transport services, food and drink machines, and staff rooms. This right does not extend to off-site facilities or benefits in kind, but a company does have the option to offer those to agency workers if it wishes to do so.

Hauliers will need to inform agency workers of any job vacancies they have so that they may apply if they wish to. It is sufficient to do this by displaying a general announcement in a suitable place where the agency workers will see it on a company’s premises.

The 12-week rights

The Agency Worker Regulations 2010 protect agency workers from less-favourable treatment and conditions compared with their employed colleagues after they have completed 12 weeks of service. This includes:

• pay, including bonuses, commission or holiday pay; redundancy pay; company sick pay and maternity, paternity or adoption pay;
• working time rights, including any annual leave they are legally entitled to.

To ensure a company is treating agency workers fairly, is it important to find a ‘comparable employee’ in the business and assess the terms and conditions that it is offering agency workers.

A comparable employee would:

• be under the company’s direction and control;
• be engaged in same or similar work as an agency worker;
• work in the same establishment as the agency worker.

True employment status

There are several types of employment status and, unfortunately, there is a grey area around who is considered employed and who is considered self-employed. Operators need to be clear about a worker’s employment status from the outset as it will determine their legal duties and responsibilities.

Sometimes companies may believe someone is an agency worker but in fact they are a temporary worker (employed by an agency) or a temporary employee (employed by the company) in the eyes of the law.

Agency workers are usually classed as ‘workers’ rather than employees, but that is not definitive. Operators should ensure they have contracts in place defining the relationships between the company and those who work for it, or workers who are supplied to the business. This is not always straightforward. 

Even if a company has documents in place defining the relationship, what happens in practice can override those terms. In other words, a company cannot avoid true employment status by calling someone an agency worker rather than an employee if they are in reality an employee in all but name.

Financial implications

Getting it wrong could be costly in terms of claims by staff (see box) or claims for additional taxes and National Insurance contributions or fines from HMRC. If an organisation is unsure if somebody working for

it is an agency worker, employee, self-employed subcontractor or a worker, seek professional legal advice as soon as possible. 

Further information on agency workers is available on the government website.

• This article was written by Nickie Elenor, MD and solicitor at Your HR Lawyer.