Agency Workers Regulations
On 21 January 2010 the Agency Workers Regulations 2010 were laid before Parliament, and will come into force on 1 October 2011.
The main purpose of the Agency Worker Directive (AWD) is to ensure the appropriate protection of temporary agency workers through the application of the principle of equal treatment and to address unnecessary restrictions and prohibitions on the use of agency work. The AWD follows similar directives on fixed-term and part-time work (which were based on European social partner agreements). Under the Directive 'equal treatment' relates only to basic working and employment conditions of temporary agency workers (eg pay, working time). The Directive does not affect the employment status of temporary workers. This means that after 12 weeks in a given job, an agency worker will be entitled to equal treatment (at least the basic working and employment conditions that would apply to the worker concerned if s/he had been recruited directly by that undertaking to occupy the same job).
Final Guidance has now also been published which can be found at the following link: http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf
We have a number of solutions that are guaranteed to meet the regulations and limit the commercial impact that they have on your business, all of our solutions have been throughout rigorous legal consultation to ensure that we provide "complete AWR compliance".
Quick Start Guide
“To provide agency workers the entitlement to the same or no less favourable treatment with respect to basic employment and working conditions, if and when they complete a 12 week qualifying period.”
Day 1 rights for all agency workers:
If you hire agency workers, you must ensure that they can access your facilities (such as canteen, childcare facilities etc) and can access information on your job vacancies from the first day of their assignment.
After 12 weeks in the same job:
The equal treatment entitlements relate to pay and other basic working conditions (annual leave, rest breaks etc) and come into effect after an agency worker completes a 12 week qualifying period in the same job with the same hirer.
What this means for you if you are a hirer of agency workers:
If you are an employer and hire temporary agency workers through a temporary work agency, you should provide your agency with up to date information on your terms and conditions so that they can ensure that an agency worker receives the correct equal treatment, as if they had been recruited directly, after 12 weeks in the same job. You are responsible for ensuring that all agency workers can access your facilities and are able to view information on your job vacancies from the first day of their assignment with you.
What are the Agency Workers Regulations?
The new regulations derive from European legislation designed to give temporary agency workers parity in pay and employment conditions as they would have been entitled to had they been recruited by the hirer directly to do the same job. Whilst in other parts of the EU, this entitlement comes into effect from day one of an assignment; the UK has a derogation period of 12 weeks. This means the agency worker needs to be engaged for 12 weeks of service with the same hirer, in the same role, in order to qualify.
Agency Workers – A definition
The regulations do not apply to workers who have found a ‘perm’ job with a client, even if they were introduced by an agency. The regulations apply to individuals who meet the definition of an agency worker. The regulations define an agency worker as an individual; who is supplied by a temporary work agency to work temporarily under the supervision and direction of a hirer; and who has a contract of employment or any other type of contract
(a contract for services for example) under which they provide their service personally for the agency. An agency worker then is the individual typically supplied by employment businesses to a client to work under the client’s direction and supervision.
When does an agency worker qualify for equal treatment?
Except for the Day One rights the agency worker will be entitled to equal treatment once she/he has worked for 12 weeks in the same role at the same hirer. This is irrespective of the working pattern (e.g. full time or part time). It is also irrespective of which or how many agencies supplied the agency worker to do the same role at the hirer.
Who is liable for establishing equal treatment?
The agency will be liable for any breach of a right in relation to equal treatment for which they are responsible. However, they will have a defence if they have taken ‘reasonable steps’ to obtain the necessary information from the hirer. This will mean the hirer and the agency will need to work together closely to share appropriate information to ensure the agency worker is receiving equal treatment.
What will the agency worker be entitled to after 12 weeks?
Agency workers will be entitled to the same basic pay and working conditions. This includes the basic hourly rate and any additional entitlements that are linked to the work done by the agency worker during an assignment. It will include the same overtime and shift allowances, unsocial hour’s premiums, payments for difficult or dangerous duties and lunch vouchers. Bonuses which are directly attributable to the quantity of work done by an agency worker will also be included. Agency workers will also be entitled to the same rest breaks and annual leave allowance.
How does the 12 week qualifying period work?
The provisions will apply after the worker has been engaged for 12 weeks regardless of their working pattern (e.g. full time or part time). A new qualifying period will only begin 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 12 week qualifying period can be paused if the worker takes annual leave, takes certified sick leave or takes time off for public duties. The regulations include a complex set of anti-avoidance provisions designed to make it difficult for hirers to circumvent the qualifying period.
Frequently Asked Questions
Will agency workers be entitled to the same rights and benefits as employees?
The new regulations will not change the employment status of agency workers who will still not have the rights to claim unfair dismissal, redundancy pay or maternity leave. Nor will agency workers be entitled to the same benefits such as occupational sick pay, company pension schemes, financial participation schemes and bonus payments based upon organisational or company performance. These are considered a reflection of the long term relationship between an employee and an employer. Agency workers will therefore remain a flexible labour resource for hirers.
How do I calculate the 12 week qualifying period for part time temporary workers?
The 12 week qualifying period is triggered by working in the same job with the same hirer for 12 calendar weeks. A calendar week in this context comprise any period of seven days starting with the first day of an assignment. Calendar weeks will be accrued regardless of how many hours the worker does on a weekly basis. Therefore, even if the agency worker is on an assignment for only a couple of hours a week, it will still count as a week and they will still be entitled to equal treatment after 12 calendar weeks calculated in this way.
Some of the agency workers I engage get paid more than my own employees. Will I have to lower their rates of pay to match the rate paid to permanent workers?
No. If the agency workers you are supplied with are on a higher rate of pay than your own employees then their rate of pay does not need to be lowered. However you may need to show the steps you put in place to decide on the temporary workers rate of pay.
Can I circumvent the Directive by employing temporary workers directly?
Unlike workers employed directly, agency workers do not have rights to claim unfair dismissal, request maternity or paternity leave or claim redundancy pay. This makes them a flexible resource for employers to meet unexpected peaks in demand and cover for absences. Employing workers directly, even on zero hours contracts, means workers may qualify for those additional rights.