What is AWR?
The AWR ‘Agency worker regulations’ came into place in October 2011. The AWR has been introduced to ensure the protection of temporary agency workers by applying the “principles of equal treatment in terms of basic working and employment conditions”. This means they will be entitled to equal treatment as if they were a permanent member of staff directly employed. In the UK this is subject to the completion of a 12-week qualifying period of continuous work with the same company in the same role.
Who does AWR apply to?
The regulations apply to all temporary agency workers who are supplied by an agency, and under the supervision and direction of, a hirer. They have a contract with the temporary work agency (or any intermediate) which is either a contract of employment or a contract for services. Limited Company contractors who work under the supervision and direction of the hirer will be deemed to be agency workers.
What are Day One rights?
Some aspects of equal treatment apply from day one of the worker’s contract. These include access to collective facilities and amenities such as car parks, canteen, gym, childcare facilities, transport services, prayer room. Day One rights also include the right to be informed by the hirer of relevant job vacancies within the hirer’s organisation that would be available to a permanent employee. The agency worker is entitled to know where and how to access this information. Your consultant at Arc7 will liaise with the hirer to confirm Day One rights and will include relevant information in the agency worker’s contract.
What is included in equal treatment and what is excluded?
Equal treatment after the 12-week qualifying period applies to the basic working and employment conditions of an agency worker and includes duration of working time, overtime, breaks, rest periods, night work, holidays, public holidays and pay (including overtime, shift allowance, unsocial hour premiums, bonuses that are linked to individual performance). Equal treatment does not apply to occupational sick pay, occupational pension, redundancy pay, occupational maternity, paternity or adoption pay, benefits in kind or bonuses that are not directly linked to the contribution of the individual.
How is equal treatment established?
The requirement is simply to treat the agency worker as if he or she had been employed directly to the same job. The hirer should establish a comparator within their business if they can and treat the agency worker in the same way. The comparator needs to be engaged in similar work and work within the same workplace. If there is no comparator and a comparable rate of pay cannot therefore be established, it is important to remember that other equal treatment rights (such as annual leave) will still apply.
What is the 12-week qualifying period?
An agency worker must have been engaged for a period of 12 continuous calendar weeks working in the same role with the same hirer before they have the right to equal treatment. The qualifying period is irrespective of whether an agency worker works full or part time (by calendar weeks rather than hours worked). A new qualifying period will begin if there is a break of more than six calendar weeks between assignments in the same role, or, where the agency worker takes on a new assignment with the same hirer which is different to the previous assignment.
Will the agency worker have all the same rights and benefits that a direct employee has?
No, the regulations do not change the employment status of agency workers and so workers will not be able to claim for unfair dismissal, redundancy pay or maternity leave from the hiring company. Also, agency workers will not be entitled to company pension schemes, share options or bonus payments based on company rather than individual performance.
What information must the hirer provide?
- Current legislation requires the hirer to provide the following information:
- The identity of the hirer, nature of the business and location
- The start date and expected duration of the assignment
- The job role and responsibilities
- The experience, training and qualifications which the hirer considers necessary to work in the position
- Any risks to health and safety
- Any expenses payable by or to the agency worker
- The hirer will now have to provide the agency with the following additional details in order to comply with the new regulations:
- The level of basic pay that would have been paid if the agency worker were recruited directly, plus details of overtime payments and shift/unsocial hours allowances.
- Details of bonus schemes that the hirer operates and how individual performance is appraised.
- Information on annual pay increments. Following the 12-week qualifying period agency workers are entitled to receive the pay increment that he or she would have been entitled to if recruited directly.
- Details of any vouchers with monetary value
- Annual leave entitlement
What can the hirer do to ensure compliance with the regulations?
It is important that hiring companies liaise closely with agencies to assist with AWR compliance. A risk assessment should be undertaken and the following points considered:
Establish the differences currently within your organisation in relation to rights enjoyed by agency workers and permanent workers. This will enable you to determine if any changes need to be made to equalise terms.
Consider the necessary Day One changes. How do your permanent employees access these benefits? The same access must be granted to your agency workers.
Keep an eye on the length of assignment to ensure that you are aware when your agency workers reach their 12-week qualifying period. This will ensure that you implement any changes to basic working and employment conditions at the correct point in time.
Consider the remuneration packages of your permanent employees. Appraisal processes for agency workers may need to be implemented to decide on any performance-related bonuses they may be entitled to.
Full guidance for hirers and agency workers is available from the Department for Business Innovation & Skills. http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf