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One of our clients recently asked: “If I’m using agency workers, do I need to worry about record-keeping, or is that entirely up to the agency?” It’s a good question, and one that’s worth exploring. At first glance, it may seem that all the responsibility lies with the agency. After all, surely they handle recruitment, employment checks and payroll?
The reality, however, is a bit more nuanced. While agencies are responsible for many aspects, as the employer (or technically the "End User"), you still have obligations under UK employment law. You’re responsible for making sure workers are legally employed, capable of doing the job and properly inducted, particularly when it comes to health and safety. Plus, since October 2024, you also have a proactive duty to prevent sexual harassment in your workplace, and that includes looking after agency workers.
So, let’s break this down. Here’s what you need to know about checks, records and training for agency workers.
Checks You Should Be Doing
While much of the heavy lifting (like recruitment and payroll) falls to the agency, you should:
1. Verify Right-to-Work Compliance:
Ensure the agency has confirmed the worker’s legal right to work in the UK.
Request written confirmation from the agency to this effect. You might even conduct occasional independent audits to ensure compliance (which also supports Modern Slavery requirements).
2. Ensure Qualifications and Skills:
Check that workers have the qualifications or experience required for the role.
Review certifications if the job involves specialised skills or safety-critical work.
3. Health and Safety Assessments:
Ensure the worker can meet any specifically identified work-related job demands for the role, including physical and mental capability.
4. DBS Checks (if required):
Confirm the agency has performed appropriate checks for roles involving children or vulnerable adults.
Records You Should Keep
While you don’t need to keep exhaustive records, you should maintain certain key details:
1. Hours Worked:
Record daily attendance for emergency evacuation purposes, and to monitor working time compliance.
2. Health and Safety Inductions:
Document evidence of any induction or training provided, including site-specific health and safety instructions.
3. PPE Records:
If the role requires personal protective equipment (PPE), keep proof that it was issued to the worker.
4. Training Evidence:
Keep records of any on-the-job training provided to the worker.
5. Complaints and Incident Reports:
Document how any complaints (e.g. discrimination or harassment) were handled, as you could be held liable in a Tribunal. Keep these records for at least three years, in case of subsequent claims.
6. Minimal Personal Data:
If the agency provides a CV, only retain it as long as necessary and with the worker’s consent. Dispose of unused CVs within three months.
Training You Need to Provide
Agency workers should receive the same training and preparation as permanent employees for the role they’re undertaking:
1. Health and Safety Induction:
Cover site-specific hazards, emergency procedures and equipment usage on their first day.
2. Role-Specific Training:
Provide any training required to safely and effectively perform the job (e.g. manual handling, food hygiene, or GDPR compliance).
3. Equality and Inclusion Awareness:
Make sure workers are aware of your policies on Equality and Dignity at Work (anti-discrimination and harassment).
How Long to Keep Records
The length of time you retain records depends on the type of information:
Working Time Records: Keep details of their working hours for at least two years to comply with Working Time Regulations.
NMW and HMRC Records: Retain for three years, although this is primarily the agency’s responsibility.
Health and Safety/Incident Reports: Retain for at least three years, as this aligns with personal injury claim timeframes.
Other Records (e.g., CVs): Dispose of within three months unless you have explicit consent to keep them longer.
Key Action Points for Employers:
Request Written Confirmation: Ask your agency to confirm they have completed right-to-work checks, paid NMW and followed HMRC rules. Conduct spot checks occasionally.
Provide Health and Safety Inductions: Treat agency workers like any other employee when it comes to safety training and job preparation.
Keep Minimal Records: Maintain essential records, such as attendance, induction evidence and complaints handling. Dispose of unnecessary data promptly to comply with GDPR.
Prevent Harassment: Take proactive steps to ensure your workplace is free from harassment. Make sure workers know how to raise concerns and that you will handle them fairly.
Audit Your Processes: Regularly review your procedures for working with agency workers to ensure compliance with legal and ethical standards.
While using agency workers does shift much of the responsibility to the agency, as you have now read, you are not entirely off the hook. By following these steps, you will ensure your business is compliant, and that agency workers are integrated safely and effectively into your workplace. HR is rarely simple, but with the right processes, you can keep things running smoothly.
The guidance provided in this article is just that - guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice