Guide To The Agency Workers Regulations (AWR)
On 1st October 2011 the Agency Workers Directive will be implemented through the Agency Workers Regulations 2010. But how will this impact your employment terms?
The purpose of the Agency Workers Directive is to provide temporary agency workers with equal treatment in terms of basic working and employment conditions as if they had been employed directly to do the same job. The implementation of the Directive is likely to have major implications on the costs and use of agency workers for many businesses.
In essence equal treatment under the Directive as reflected in the Regulations relates to basic working and employment conditions, the most prominent being: pay; working hours; overtime; breaks; rest periods; holidays; and access to training and collective facilities.
Equal treatment does not include pension provision and occupational sick pay, nor will the Regulations change the employment status of temporary agency workers.
An important feature of the Directive is that it allows for implementation in accordance with the agreement reached on 20 May 2008 between the Confederation of British Industry and the Trades Union Congress, which provides that equal treatment for the majority of the rights will not be required until the agency worker has worked in the relevant role for 12 weeks (the qualifying period). This is reflected in the Regulations.
The Regulations apply to all temporary workers who are supplied to work for and under the supervision and direction of a hirer, and supply is made under a contract of employment or any other contract to perform work and services personally.
New rights for agency workers – a snapshot
The agency worker will have certain entitlements from day one of their assignment and do not constitute any qualifying period. With effect from 1st October 2011 all agency workers will be entitled to:
- be informed by the hirer of relevant job vacancies within the hirer’s organisation; and
- access to collective facilities and amenities, such as canteen, childcare facilities, or transport services.
After the qualifying period the agency worker will be entitled to:
- pay being any sum payable to the worker, including fee, commission, bonuses, overtime, annual leave, and any other payments, which are directly attributable to the amount or quality of work undertaken by the agency worker;
- the duration of working time, rest breaks/periods and night work; and
- annual leave (over and above the statutory entitlement). Please note, there are caveats to this, which can be found in the AWR Guide below.
For pregnant workers and new mothers there are two new entitlements after the qualifying period:
- Pregnant workers will be entitled to take paid time off for ante-natal medical appointments and classes whilst on assignment;
- If an agency worker is pregnant or a new mother, and they cannot continue to carry out the duties of their assignment due to health and safety reasons, they must be found suitable alternative work, paid at the same rate or higher. If no alternative work can be found for them, the temporary work agency (TWA) must continue to pay the agency worker for the duration or expected duration of the original assignment.
There are circumstances in which the qualifying period may be paused, and then restarted once the agency worker returns to the assignment. These include:
- a break of no more than six calendar weeks
- sickness absence
- annual leave
- shutdowns – factory closures/school holidays
- Jury service
- Industrial action
Individuals who work outside of the UK will not fall within the scope of the Regulations. Each EU member country must have implemented the EU Agency Workers Directive by the 5th December, 2011, so if individuals are working in other EU countries legislation in that country will apply.
Not all individuals working through TWA’s will fall within scope. The genuinely self-employed (in business on their own account), and those working under the supervision and direction of the supplier rather than the hirer will not fall within scope. Those most likely to fall outside the scope are Limited Company Contractors, who are outside IR35.
We should like to sincerely thank the Association of Professional Staffing Companies (APSCo) for its help in compiling this AWR summary. If you would like more information on the Regulations and how they are likely to impact agency workers, hiring companies and temporary work agencies, please click on The APSCo Guide to the Agency Workers Regulations 2011 – 2012 image below: