The Agency Workers Regulations 2010 (AWR) came into force on 1st October 2011. The government has now published its guidance notes on the implementation and implications of the Regulations. The AWR affects Great Britain, with Northern Ireland publishing its own regulations. This is intended as a guide to any organisation that may be affected by the AWR.
The AWR apply to:
- Individuals who work as agency workers;
- Individuals and organisations involved in the supply of agency workers whether directly or indirectly to work temporarily under the supervision of the Hirer; and
- Any Hirer
The AWR do not apply to:
- Individuals who find work through a temporary agency but are in business on their own account;
- Individuals working on Managed Service Contract i.e. where the agency worker works under the supervision of the agency and not the host organisation e.g. a cleaning contract;
- individuals working for in house temporary staffing banks where the company employs its own temporary agency workers;
- Individuals who find direct employment through an agency; and
- Individuals on secondment or loan
What is a Temporary Work Agency (TWA)?
A TWA is an agency who supplies agency workers to work temporarily for a third party who is the Hirer. The agency worker operates under the supervision of the Hirer but has a contract of employment or service contract with the TWA.
The Regulations cover traditional agencies but also extend as far as intermediaries, which will include umbrella companies and master vendors. Sometimes the hire of agency workers is managed for the Hirer by a neutral vendor who does not employ the agency workers directly or sources other recruitment agencies. Most of these organisations will be categorised a TWA in view of their involvement in the supply of individuals and forwarding payments to such individuals.
What is an Agency Worker?
An agency worker often called a temp is a person who has a contract with the TWA but works temporarily for, and under the direction and supervision of a Hirer. There is a tripartite relationship between the TWA, the agency worker and the Hirer.
What is a Hirer?
The Hirer often called the end user is a private, limited company, partnership or sole trader that books temporary agency workers through a work agency.
If any of your business activities fall into the category of Temporary Work Agency or Hirer you are subject to the AWR
Qualifying for equal treatment
The AWR give agency workers new entitlement from the first day of the assignment referred to as Day 1 rights and additional pay and basic working entitlements following a 12 week qualifying period.
The main factors to be taken into consideration are:
- New entitlements for agency workers under the regulations;
- How to calculate the 12 week qualifying period;
- A break between assignments that means clock starts again on the qualifying period (or when clock pauses);
- When is a role a substantively different job and clock starts again;
- Implications for equal treatment where agency workers who have contract of employment and receive pay between assignments;
- Other entitlements under equal treatment provisions – working time provisions such as rest and holiday entitlements;
- Treatment of pregnant agency workers and new mothers;
- Day 1 access to facilities at the Hirer’s premises; and
- Day 1 access to information on job vacancies at the Hirer’s premises.
Day 1 Rights Overview
- Access to facilities; such as the staff canteen, transport facilities, car parking and child-care facilities; and
- Access to vacancies; the right to be notified of any job vacancies within the Hirer.
This is not a right to special treatment.
For example if there is a waiting list for facilities i.e. a car parking space the temporary agency worker will be added to the list.
SPECIFIC DAY 1 RIGHTS
Access to facilities
From day one of their assignment the agency worker is entitled to equal access to collective facilities and amenities provided by the Hirer to direct employees who are comparable agency workers. This can include:
- a canteen or other similar facilities
- transport services (e.g. in this context, local pick up and drop offs, transport between sites – it does not mean company car allowances, season ticket loans)
- toilets/shower facilities
- staff common room
- waiting room
- mother and baby room
- prayer room
- food and drinks machines
- car parking
This is a non-exhaustive list and acts as an indication of which kind of facilities should be included.
Hirers may face practical and organisational problems in affording agency workers the same access. However consideration should be given to offering certain access of facilities on a pro rata basis as an alternative to excluding them completely.
Access to Information on Job Vacancies
From day one of an assignment, all agency workers will have the right to be provided with information about any job vacancies within the Hirer’s organisation that would be available to a comparable employee or agency worker.
Hirers can choose how to publicise vacancies, whether it’s via the internet/intranet or on a notice board in a communal area.
This obligation does not constrain employers’ freedom regarding;
- any qualification or experience requirements such as time in service with the organisation; or
- how they treat applications
Rights after 12 weeks in the same job
These new equal treatment entitlements will only come into effect after the agency worker completes a 12 week qualifying period with the same Hirer.
- pay related to work undertaken on assignment;
- duration of working time
- night work
- rest periods
- rest breaks
- annual leave
- paid time off for ante natal appointments
How do I calculate the 12 week qualifying period?
The 12 week period is triggered by working in the same job for the same Hirer for 12 calendar weeks. A calendar week comprises any period of 7 days starting with the first day of the assignment irrespective of how many hours the agency worker does in any one week.
It is not retrospective so an agency worker will only be able accrue 12 weeks after the 1st October 2011 even if the assignment started earlier.
If there is a break between absences of more than 6 weeks this will act as a trigger to restart the qualifying period.
There are very specific rules in relation to the suspension of the qualifying period and restarting of the period for temporary absences including sickness absence and pregnancy related absence. Any TWA or Hirer should take specialist advice form IMS in these circumstances.
TWA’s and Hirers should also be aware of anti-avoidance provisions, which address any situations that are designed to deliberately deprive an agency worker of their entitlements.
For example there is no obligation upon a Hirer to engage the agency worker beyond the 12 week qualifying period. They could reengage the agency worker in a different role or the same role after a break of 6 weeks. This could be justifiable having regard to all the circumstances. However if there was then a third assignment this could be viewed a deliberate and regular pattern to avoid the AWR.
Rights after 12 week qualifying period
What is included:
- Basic Pay
- Shift/unsociable hours allowance
- Payment for annual leave (above the statutory minimum which is added to the hourly/daily rate
- Bonus. Commission where the bonus or commission is directly attributable to the amount or quality for the work done by the individual.
- Additional discretionary payments that have become custom and practice.
- Vouchers or stamps
What is excluded:
- Occupational sick pay
- Occupational pensions. NB new Pension provisions phased in from October 2012
- Occupational maternity, paternity or adoption pay
- Redundancy pay
- Notice pay (statutory or contractual)
- Payment for time off for Trade Union duties
- Guarantee payments as they apply to directly recruited staff if laid off
- Advances in pay or loans e.g. for season tickets
- Expenses such as accommodation and travel expenses
- Payments or rewards linked to financial participation schemes such as share ownership schemes, phantom share schemes
- Overtime or similar payments where the agency worker has not fulfilled qualifying conditions required of a direct employee
- The majority of benefits in kind, given as an incentive or reward for long-service
- Any payments that require an eligibility period of employment/service
- Bonuses which are not directly linked to the contribution of the individual
- Additional discretionary, non-contractual bonuses that are not regular payments
Further guidance is available from IMS in relation to these issues.
After completing a 12 week qualifying period in a given job, pregnant agency workers will be allowed paid time off to attend antenatal medical appointments and antenatal classes when on assignment.
They will also need to be found alternative sources of work, paid at the same rate or higher than the original assignment, if they can no longer complete the duties of the original assignment for health and safety reasons. If alternative work cannot be found, then the pregnant woman will have the right to be paid by the agency for the remaining expected duration of the original assignment.
This provision does not give a pregnant agency worker any entitlement to maternity, paternity and adoption rights beyond those that they are already entitled to. Nor does it give them a right to return to work after maternity leave. The intention of the AWR is to keep pregnant women in the workplace and to ensure that women are not treated unfairly due to their pregnancy. This in addition to the discrimination provisions set out in he Equality Act 2010.
AWR Organisation Compliance
See AWR Organisational Compliance in our agency area.