Agency Workers Regulations Q&A

Agency Workers Regulations (AWR) Q&A

What is AWR?
The Agency Workers Directive will be implemented in the UK on 1 October 2011 through the Agency Workers Regulations 2010. The purpose of the 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.
 
Who do the regulations apply to?
The regulations apply to all agency workers including those employed via umbrella companies or other intermediaries. Excluded workers are those that are self employed and those working through a corporate vehicle
What will happen on 1 October?
From that date all UK organisations will be expected to provide agency workers with equal treatment to the client’s own permanent employees, once they have been in the role for over 12 weeks.
What does equal treatment cover?
 
Equal treatment will apply to basic working and employment conditions including:
 
Duration of working time
Overtime
Breaks
Rest Periods
Night Work
Holidays
Public holidays pay
 
Terms and conditions ordinarily included in employee contracts (for example, collective agreements, pay scales, company handbooks)
 
What does equal treatment in relation to “pay” include?
 
Pay includes basic pay plus other contractual entitlements directly linked to the work undertaken by the agency worker whilst on assignment i.e.
Payment for overtime
Shift allowances
Unsocial hour premiums
Bonuses that are directly linked to the quality or quantity of work done by an agency worker
 
What is excluded from the meaning of “pay”?
 
Aspects of pay that are provided to employees in recognition of the long term relationship between the employer and the employee such as:
Profit sharing schemes
Occupational pension contributions
Occupational sick pay
Redundancy pay
Maternity pay
 
How is the 12 week qualifying period calculated?
It is 12 calendar weeks regardless of working pattern (full time or part time).

What are “day one rights”?
Some aspects of equal treatment apply before the 12 week qualifying period i.e. from day one of the worker’s assignment. These are; Access to facilities (i.e. canteen, childcare, transport). Season ticket loans or car allowances are not included.
 
How is equal treatment on pay established?
If there are no permanent employees within the client’s business to compare an agency worker to then National rates of pay must be used as a guideline. The rate of pay will remain the same during and after the qualifying period of 12 weeks.
 
Are agency workers entitled to ask for disclosure of information obtained from the client about their pay scales (and any other equal treatment information)?
Yes. But only if this is requested after the 12 week qualifying period. The agency (and the client) will have 28 days to respond to the worker’s request from the date received.

What is the effect of the AWR on holiday pay?
All workers are entitled to a minimum of 5.6 weeks (28 working days) annual leave, with payment made in lieu which is in excess of the minimum (so that the worker doesn’t have to actually take the extra time off).
Agencies are also permitted to role any holiday entitlement which is in excess of the statutory minimum into the hourly or daily pay rate.
 
Do assignments with other agencies with the same hirer count towards the 12 week qualifying period?
 
Yes – agency workers will be asked about their recent employment history to determine whether they are qualify for equal treatment. 
 
Is it possible for agencies or workers to opt out of the regulations?
No. Workers are entitled to complain to an employment tribunal in the event of a breach of the AWR, this must be within 30 days of the breach.

Who is responsible for a breach of the regulations, the client, the agency or both?
Both - An agency has the defence to a claim by showing that they have taken “reasonable steps” to obtain the necessary information from the client.
The client will be liable for access to employment and facility claims as the agency has no control over these points.
 
Where can I get further information on AWR?
You can find further details on the BIS website www.bis.gov.uk or call us on 0207 2555555