Understanding Agency Worker Regulations (AWR)
Posted 17.11.11
The Agency Workers Regulations will come in to force in England. Scotland and Wales on 1st October 2011. The regulations stem from the EU Temporary Workers Directive 2008 which gives agency workers the right to the same pay and other working conditions enjoyed by a hirer’s own workers. The regulations do not alter an agency workers’ employment status so do not make the worker an employee of either the hirer or the agency. The right to equal treatment will come in to effect after a period of 12 consecutive weeks worked in the same role for the same hirer.
The qualifying period
The regulations apply to individuals who meet the definition of an ‘agency worker’. An ‘agency worker’ is defined as an individual who is supplied by a temporary work agency to work temporarily under the supervision and direction of a hirer. As stated above the agency worker will be entitled to equal treatment once they have worked for 12 weeks in the same role at the same hirer (irrespective of whether they are employed on a part-time or full-time basis). A new qualifying period will begin only if a new assignment with the same hirer is substantively different or if there is a break of more than six weeks between assignments in the same role.
The qualifying period will be paused rather than stopped if the worker takes:
• a break of six weeks of less;
• certified sick leave for no more than 28 weeks;
• statutory/contractual maternity, adoption or paternity leave; or
• time off for public duties (including jury service)
If an agency worker takes maternity, adoption or paternity leaves the agency worker will be treated as if they have continued working in an assignment.
If pregnant they will also be entitled to paid time off to attend medical appointments and antenatal classes after the 12 week qualifying period.
What does equal treatment mean?
The entitlements include pay, duration of working time, night work, rest periods, rest breaks and annual leave. Pay has been defined as ‘any sums payable to a worker of the hirer in connection with the worker’s employment including any fees, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under a contract or otherwise…’
As the regulations do not change the workers employment status they will not have the right to claim for unfair dismissal, redundancy pay or maternity leave which are entitlements reserved for employees. They will also not be entitled to benefits such as occupational sick pay, company pension schemes, share options schemes, loans, expenses, health/life insurance, financial participation schemes and bonus payments based on company performance.
What are day one rights?
There are two rights which agency workers are entitled to from the first day of an assignment. Firstly, hirers must inform agency workers of existing vacancies in their organisation. Hirers do not have to actively seek out each agency worker but ensure they have the same access to information about vacancies as other employees.
Secondly, agency workers will also be entitled to access of on-site facilities such as crèche and childcare facilities, canteen facilities, car parking and provision of transport services. In practice this means that if there is a waiting list for childcare facilities or a car park space an agency worker is not automatically entitled to a place but can be subject to the same criteria to access the facility as someone directly recruited by the hirer.
Who is liable for establishing equal treatment?
The guidance states that the agency and the hirer must co-operate with each other to ensure that an agency worker receives their rights. On a practical level this means that for each assignment equal treatment will need to be established in respect of the terms and conditions that apply to a comparable worker or a comparable employee engaged in the same role or broadly similar work. The temporary work agency will be responsible for any breach of a right in relation to equal treatment. However the agency will have a defence if it has taken ‘reasonable steps’ to obtain the necessary information from the hirer.
What are the next steps?
We have spent much of the last 12 months trying to ease the disruption of that initial post-qualification period for our clients and candidates. We are confident that the information we have provided on our website and via our newsletters, blogs, mailers; as well as the advice offered verbally by our team of Account Managers will have informed our clients and candidates in advance of the changes that lie ahead. Comparator rates have been arranged with clients for any temporary candidates that will fall in to the qualifying period and holiday allowances have been reviewed to make the transfer as smooth as possible.
If you have not yet fully implemented a process for the AWR regulations you are not too late please contact your Account Manager for guidance and more information.