Agency Worker Regulations 2010 (AWR)
The Agency Worker Regulations 2010 came into effect from 1st October 2011 which, after a qualifying period of 12 weeks, the agency workers are entitled to the same basic pay and employment working conditions as if they had been recruited directly by the hirer to do the same or similar job. The requirement is for equal treatment.
An agency worker includes an individual provided via an agency, umbrella company or Neutral Vendor.
Day One Rights
Each agency worker is entitled to day one rights from the first day of their assignment. These rights include the following:
Canteen, Childcare, Job Vacancies, Training, Car Parking, Lockers, Transport etc.
Access to facilities and amenities should be on the same basis as access offered to employees, i.e. if there is a waiting list for a car parking space based on length of service then the Temporary Agency Worker would also be placed on the waiting list. Access to facilities and amenities does not mean offering temporary workers the same financial benefits package as comparable employees.
After the 12 week Qualifying Period, equal treatment includes:
- Basic salary
- Duration of working time
- Overtime
- Rest periods/breaks
- Holiday entitlement (above statutory entitlement)
- Collective agreements
- Contracts of employment
- Company handbook
- Night work which must be at least 7 hours
- Shift allowance
- Vouchers
- Individual bonuses or commission payments which are directly attributable to the quantity or quality of work done by the agency worker
- Right to paid time off for Ante natal care (not including the first appt of the pregnancy) during their working hours
- Right to be offered alternative work if pregnant, given birth or breastfeeding. If the assignment ends due to not being suitable due to risks related to pregnancy the agency worked will have the right to be paid by the temporary work agency for the intended duration or likely duration (whichever is longer), however if the agency worker refuses suitable alternative work this will not be the case.
But, Equal treatment excludes:
- Occupational sick pay (SSP entitlements are not affected)
- Occupational pensions
- Occupational maternity, paternity and adoption pay or redundancy pay
- Payments linked to a financial participation scheme
- Company bonuses
- Loyalty bonus
- Performance related pay
- Expenses i.e. travel
- Payments for time off for Trade Union Duties
- Notice Pay (statutory and contractual
- Redundancy Pay
- Payments by way of an advance or loan i.e season ticket
- Financial Benefits i.e staff discounts or subsidised meals
The agency worker will not quality for equal treatment until they have completed 12 continuous calendar weeks in the same or substantively similar assignment for the same hirer.
From 1st October 2011 any week in which they work in their assignment counts towards the 12 weeks even if only one day/hour a week is worked. The agency that supplied the agency worker is irrelevant.
If the Temporary Agency Worker has a break from their assignment for more than 6 weeks their qualifying clock stops accruing unless their absence is due to sickness, jury service, annual leave, shut downs and Industrial action in which case their qualifying service accrual pauses and is carried over when they return to their assignment. If the absence is due to reasons of maternity, paternity or adoption leave their qualifying service will continue to accrue whilst they are on leave.
A comparable worker is an employee within your organisation who undertakes the same or a broadly similar role requiring similar levels of skills and experience. Normally the pay and working conditions of an actual comparable worker are used to determine the equal treatment rights of a Temporary Agency Worker, however, a hypothetical comparator could be used as a comparison for working conditions if no real life comparator exists.
Pay Between Assignments Model
If a Temporary Agency Worker is employed under a Permanent Contract of Employment by a Temporary Work Agency the Temporary Agency Worker will no longer have the right to equal pay. This is known as pay between assignments or 'The Swedish Derogation Model'.
To qualify the employment contract must be entered into before the first assignment under that contract. The Temporary Agency Worker will still be entitled to the day one rights and to equal treatment for duration of working time, night work, rest periods, rest breaks and annual leave.
The permanent Contract of Employment must include the minimum rate for calculating remuneration, the location of work, hours of work, minimum and maximum hours per week, nature of work and confirmation that entering into the contract means that the Temporary Agency Worker will not have the right to equal treatment in relation to pay for the duration of that contract.
The Temporary Work Agency must also, during any period under the contract that the agency worker isn't working but is available to work, take reasonable steps to seek suitable work for them and pay the agency worker a minimum amount of remuneration during that period based on their best previous working week.
The Temporary Work Agency cannot terminate the Temporary Agency Workers Contract of Employment, until it has taken reasonable steps to find suitable work for the Temporary Agency Worker and paid for that time whilst between assignments, this must be for no less than four calendar weeks during the contract and must not fall below Minimum Wage, after which time the Temporary Worker Agency is within their rights to terminate the contract, however, the Temporary Agency Worker must accept suitable work that is offered and if they refuse, then the Temporary Work Agency is not under any legal obligation to pay the Temporary Agency Worker.
Contact Senate Recruitment to find out more. All of our consultants are fully trained on all aspects of the AWR with experience of working with a number of clients in this area.