Amid the therapist recruitment crisis, many spas and salons are turning to agency workers, but not all these appointments are managed within the law. DAVID WRIGHT explains

Staff Strategy

There are nearly a million agency workers in the UK and these temporary staff can provide an ideal solution for spa or salon owners in areas where it is difficult to recruit good-quality staff, or where the appointment is short term to cover sickness, for example. However, an awareness of the laws and risks is essential.

Some temps have a contract with an agency and you pay a fee for their use, others can be self-employed. The rate of pay is higher to reflect the agency’s fees. Therefore, using agencies as a long-term recruitment tool can be an expensive option. However, some salon owners accept the costs and even recruit through agencies as a trial period before offering a permanent job to the worker

Rules and fees

The Agency Workers Regulations 2010 is the relevant piece of legislation, and it limits the right of agencies to impose “temp to perm” fees if the salon wants to keep the agency worker and offers them a job.

Transfer fees cannot now be charged unless the contract gives the salon the option of an extended hire period instead. Also, the salon owner must have recruited the agency worker less than eight weeks after the end of the temporary assignment; or 14 weeks from the beginning of it, whichever is later.

If a salon retains an agency worker for 12 weeks, they must receive the same pay as employed staff, including holiday pay, bonuses, commission, overtime and allowances for working unsociable hours. However, they are not entitled to pensions, or sick pay, redundancy pay, or any type of parental pay.

There is an exception to this where the worker is effectively employed by the agency with full employment rights and paid between assignments, but it is rare

Holiday and sick pay

Recently, an employer tried to compensate agency workers for having less holiday or unpaid breaks by paying them a higher hourly rate than other staff. They received 2.5 days less holiday, and their paid rest break was 30 minutes rather than an hour. An employment appeal tribunal concluded that a hirer cannot offset failure to comply with the Agency Workers Regulations by paying a higher rate of pay.

In another case, an employee had been working for an agency on the same assignment for six months when he was diagnosed with an illness that amounted to a disability under the Equality Act 2010. He submitted a sick note, expecting to get Statutory Sick Pay (SSP), but a few days later was told his assignment had ended on the day he submitted the note. An agency worker is entitled to be paid SSP for as long as their assignment is due to last. If an agency dismisses someone to avoid paying SSP, they remain liable to pay it.

Continuous service

Does the service when working via an agency count as continuous service if you subsequently appoint the agency worker? The answer is “maybe”. It can be important later in the employee’s career. For example, do they have two years’ service to claim unfair dismissal?

To be safe, ensure there is a break in service of at least one calendar week (starting on a Sunday) between the last day of the temporary assignment and the first day of permanent employment; then there is no continuity of service.

The good news is, agency workers do not have to be given any notice to end an assignment early. There is no requirement to use your disciplinary procedure. It is easy to end the relationship with the worker but that doesn’t end the relationship with the agency. Normally there are rules within your contract as to how this should take place

David Wright is a consultant in all aspects of employment practice and law. He is the main employment law consultant for Habia and provides a personalised support service for UK salons. Tel: 01302 563691 davidwrightpersonnel.co.uk