The accidental employee…

The problem

The flexibility of temporary staff can be very appealing and make excellent business sense when you have an upturn in your order book or need to cover periods of staff absence. But if you’re not careful, it’s relatively easy to end up employing them - and you know how well (and expensive) protected employees are!

The agency

Before speaking to an agency, it’s well worth making a written note of the nature of the position, the skills needed and the duration of the agreement. You will also need to decide how much you’re willing to pay and whether this figure is inclusive of the agency’s fees. If you haven’t dealt with the agency before, they may ask to come and speak to you at your premises. Don’t be surprised if they ask to see the area where their staff will be working and the staff facilities. This helps them to “sell” the vacancy to potential workers - this will work to your advantage.

The small print

Most agencies have standard terms and conditions, including those relating to their charges. The two key things you need to verify at this stage are that; (1) the workers will be supplied under a “contract for services” and not a “contract of employment”. Ask a direct question; “Are you are actually their employer?”; (2) what you will be charged if you decide to keep any of the workers on as permanent staff.

Tip. Agree a nil cost fee if their worker has temped with you for a minimum agreed period.

Rights and duties

The agency is responsible for their workers’ health and safety but you also have a responsibility under your public liability insurance. You’d normally be expected to supply specialised protective clothing, though not necessarily protective footwear. Don’t be surprised if the agency asks to see your insurance certificates and they may wish to conduct their own risk assessment.

Warning

It’s not enough to have your temporary workers supplied on service contracts - you must ensure that you don’t accidentally become their employer. Understandably, many businesses try to integrate temporary workers into their workforce in order to promote good working relationships. However you need to maintain a clear distinction regarding who actually controls the worker.

Tip 1. It’s OK for you to tell a worker what work they have to do, the standards they should meet, to monitor their performance and to ensure they’re aware of health and safety issues that apply to them. However, if you have any concerns about their performance, behaviour or capability you should contact the agency. If you dealt with these matters it could indicate that you’re the employer. The onus is then on the agency to contact the worker to discuss your concerns and, if appropriate, remove them from your premises.

Tip 2. Don’t keep agency staff for any longer than necessary - to do otherwise increases the risk of them becoming accidentally employed as temporary status is forgotten. Review the situation regularly, at least every month or so.