A guide to the Agency Worker Regulations (AWR)

 

1.      Background

 

The Agency Workers Regulations 2010 (“Regulations”) came into force on 1st October 2011. The aim of AWR was to ensure the protection of Temporary Agency Workers (“Agency Workers”) by applying the principle of equal treatment.

The Regulations give Agency Workers the entitlement to full equality but do not impose an employment status between Agency Workers and the end client (”Client”).

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All Agency Workers engaged through the Contractor Co-op remain an employee of the Contractor Co-op under an over-arching contract of employment.

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The rights and statutory protections that Agency Workers already had prior to the implementation of the Regulations remain unchanged, for example: paid leave (Working Time Regulations, 1998); National Minimum Wage (National Minimum Wage); rights under Health and Safety Law; and rights not to be discriminated against (Equality Act, 2010).

 

2.         Scope

 

Who is covered by the Regulations?

• Temporary Work Agency (“TWA”)

• Temporary Agency Workers (Agency Workers)

• The end user (Client )

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Areas outside the scope of the Regulations include: managed service contracts, the genuinely self-employed, individuals on secondment and the introduction of workers to employers for direct or permanent employment.

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Agency Workers employed on a permanent basis with a TWA and who receive pay in-between assignments (i.e. “Swedish Derogation”) are not covered by the Regulations. They will be employed in-line with the terms and conditions of the TWA.

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Note: The Government announced in December 2018 that it will abolish “Swedish derogation” or “pay between assignments” contracts from 6 April 2020.

 

3.     Definitions

 

3.1.   A Temporary Work Agency (TWA)

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A TWA is an employment business which supplies workers to the Client for temporary work. Umbrella companies are considered employment businesses for the purposes of AWR.

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A TWA supplies individuals to work temporarily for and under the supervision and direction of the Client and pays for, receives or forwards payment for the work these individuals complete at the Client.

 

3.2.   A Temporary Agency Worker (Agency Worker)

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An Agency Worker is a worker engaged on a contract of services (employment contract) or contract for services to work with a TWA, who as part of that contract are assigned to the Client on a temporary basis, to complete work under the supervision and direction of the Client.

 

4.    Rights Under AWR

 

4.1.  Day 1 Entitlements

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From the first day of engagement with a Client, Agency Workers are entitled to be treated no less favourably than a comparable permanent employee at the Client (unless less favourable treatment is objectively justified) in relation to access to collective facilities and amenities as well as to information on job vacancies.

 

Collective Facilities Include:

• Canteen or other similar Facilities

• Food and Drinks Machines

• Toilet / Shower Facilities

• Baby Changing Facilities

• Prayer Room / Quiet Room

 

4.2.  Entitlements after 12 weeks:

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Following a 12 week qualifying period, Agency Workers are entitled to the same basic working and employment conditions that they would have been entitled to, for doing the same job, had they been recruited directly by the Client. These include:

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• Pay: Basic / Overtime / Shift Allowance / Flexible Allowance.

• Duration of Working Time / Rest Periods / Rest Breaks (in-line with the Working Time Directive).

• Annual Leave (entitled to the Client’s enhanced personal holiday and fixed leave comparable to someone directly employed by the Client in the same pay band)

• Paid time off for antenatal appointments and the right to alternative work or pay if the Agency Worker is unable to continue with an assignment during pregnancy for health & safety reasons.

• Other payments if the Agency Worker satisfies certain eligibility criteria (i.e. annual pay increments based on length of service or bonuses based on personal performance- not company performance).

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NOTE: Many Clients provide these rights from day one and do not require a 12 week waiting period.

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Entitlements do not include areas such as: occupational sick pay; occupational maternity or paternity pay; pensions; contractual notice pay; or redundancy pay.  

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4.3.  Calculating the 12 week Qualifying Period

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Particular rules apply to the calculation of the 12 week qualifying period which create situations where continuity can be broken, suspended and occasions when it will accrue despite an Agency Worker’s absence. Please refer to the Working Clock diagram in Appendix A.

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5.     Equal Treatment

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After the 12 week qualifying period if an Agency Worker has a concern that they are being treated less favourably in terms of their rights under the Regulations, they are entitled to raise their concerns in writing with both the Client and / or TWA and request details of how their pay and conditions have been determined.

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It is beneficial for the Client to identify a “comparator” for each Agency Worker to ensure that the Agency Worker receives equitable rights for both the Day 1 and 12 Week rights detailed in the Regulations. A suitable comparator is an individual who at the time of the Agency Worker assignment is, working under the direction of the Client and engaged in the same or broadly similar work (this also takes into consideration where relevant whether they have a similar level of qualifications or skills).

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6.     AWR Process

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6.1 The Contractor Co-op will determine whether a Client intends to apply Equal Pay from day one or after 12 weeks on assignment.

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6.2  If a Client wishes to pay equal pay after 12 weeks, then the Contractor Co-op will ensure that comparator information is obtained prior to the 12 week point. In any event, comparator information should be obtained as soon as possible (ideally before the commencement of an assignment).

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6.3 In addition to obtaining the information required under the EAA Regulations, the Contractor Co-op will obtain the following information:

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• Level of basic pay (based on the annual salary payable to a permanent employee of the Client)

• Overtime

• Shift allowances

• Bonuses (based on personal performance i.e. company performance bonuses are excluded)

• Vouchers (if they have monetary value)

• Holiday entitlement

 

6.4 Day One entitlements are the responsibility of the Client.

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6.5 The Contractor Co-op is responsible for breach of equal pay provisions. However, there is a defence available if the Contractor Co-op can demonstrate that it took “reasonable steps” to obtain the information. Therefore, comparator information must be requested from the agency (or the Client if dealing direct) at least three times.

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6.6 If the Contractor Co-op can establish that it took reasonable steps to obtain comparator information,  then liability shifts to the agency or the Client.

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6.7 Should an Agency Worker feel that their rights under AWR have been breached, all other parties in the chain must be contacted and a response must be sent to the Agency Worker within 28 days.

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6.8 If the matter cannot be resolved, an Agency Worker may bring a claim in an Employment Tribunal.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

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