Agency Workers Regulations Q&A

Agency Workers Regulation (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. There is a 12 week qualifying period before this entitlement comes into place.
 
Are benefits in kind included in the regulations?
 
No. Company car allowance and health insurance are not included within the meaning of equal treatment.
 
Agency workers will only be entitles to the same basic terms and conditions as those directly employed by you.
 
Is provision of occupational health included in the regulations?
 
No.
 
When redeploying redundant workers and roles are available – would day one (i.e. access to
vacancies) apply?
 
Yes. Day one rights apply whenever a worker starts an assignment with a hirer.
 
Is overtime included in the regulations?
 
Payment for overtime hours is included in the equal treatment principle, overtime should be offered to agency workers if it is offered to all permanent employees of the hirer.
 
Are the sum of annual pay and benefits prorated to an hourly value to prove parity?
 
A comparator/ permanent employee’s salary doing the same job will need to be given to the agency in order for them to calculate how much the worker needs to be paid on a weekly basis, so that they are on equal pay with the comparator.
 
Does AWR include sole traders? Umbrella companies?
 
The Regulations only exclude those who are self employed/sole traders. Workers providing services through an umbrella company or personal service company or other intermediaries will come under the regulation.
 
Who does the worker bring a case against? What is the process? Who is ultimately accountable?
 
The agency or umbrella company and the hirer can be accountable for breaching regulations.
 
Claims based on access to facilities (day one rights) will be against the hirer, as the agency has no control over these issues.
 
The agency will be responsible for any breach relating to basic employment and working conditions (Regulation 14 (1)).
 
Claims for breaches of the regulations must be made by the worker within 30 days of the breach.
 
If you use a sub-contractor through an umbrella company are they part of AWR?
 
No, not if the sub contractor is self employed. However, all other workers provided through an umbrella company will come under the regulations.
 
Could we take people on a zero hour’s contract and when on downtime would they receive pay?
 
If the individual is directly employed by the hirer then they will not come under the regulation.
 
If the workers are on this type of contract and supplied via an agency the regulations will apply in terms of equal treatment.
 
On a zero hours contract if you haven’t used them for 12 weeks does it expire and need to be re-issued?
 
A zero hours contract might be drafted to last for a fixed term or for the duration of a project, part time or other ad hoc basis. There is no need to re-issue this contact at the end of an assignment. The agency will remain the employer of the worker (unless it gives notice to terminate) and will look for alternative assignments.
 
Does statutory minimum notice period apply to AWR for temporary workers?
 
The Agency Workers Regulations does not affect the Employment Rights Act 1996 the same rules apply, notice must be given to terminate employment.
 
If the worker is not an employee but is engaged on a contract for services then the worker and the agency are able to terminate the relationship at any time without giving notice.