Agency Workers Regulations
Thursday, September 29, 2011
In a nutshell – What are the Agency Worker Regulations?
The purpose of the Agency Worker Regulations (AWR) is to give temporary agency workers the same basic pay and employment conditions, as they would have been entitled to had they been recruited by the Employer to do the same job. This right will commence after the agency worker has had 12 weeks of service with the same Employer.
When is it effective?
1st October, 2011
Who does it apply to?
All temporary agency workers regardless of whether they are on a contract of employment or contract for services. (HQ Personnel’s temps are on a contract for services). Any candidate who is genuinely self-employed is not affected. Temporary Workers recruited by umbrella agencies or other intermediaries for HQ Personnel are included.
What do we mean by Equal Pay or paying the same pay and employment conditions?
Pay will include the basic hourly rate, overtime and shift allowances, unsocial hours premiums and lunch vouchers.
Definition of pay excludes occupational sick pay, occupational maternity pay and redundancy pay, occupational pension schemes, which are seen to be provided in recognition of the long-term relationship between and employer and a permanent employee.
Profit share schemes are excluded but bonuses directly attributable to the quality and quantity of work done by an agency worker is included.
What happens to holiday entitlement?
Agency workers who qualify for equal treatment will be entitled to the same holiday entitlement as permanent employees, including any amount over and above the statutory requirement (currently 28 days), which staff in the Employer’s organisation receive.
How does the “12 week qualifying period work”?
From day one of any assignment:
Temporary workers will have the right to access collective facilities, for example, canteen, childcare facilities or transport services
Temporary workers have the right to be informed by the Client of any vacancies within the organisation, although there is no obligation on the Clients part to employ the agency worker.
Pregnant agency workers will have the right to be paid when attending ante-natal appointments. (Currently employees only)
The additional rights to equal pay and working conditions will only apply to agency workers who “qualify” by working for a “qualifying period”.
Under the regulations, an agency worker will complete the qualifying period by working “in the same role with the same hirer/client for 12 continuous calendar weeks, during one or more assignments”
Points to remember:
- The agency worker must complete the 12-week period by working with the same client and not simply by working for 12 weeks with the same agency. This means that an agency worker can complete the qualifying period even if she/he is supplied by more than one agency to the same client. (We will need to make sure that we collect this information from the candidate as ultimately they will be best placed to tell us)
- What is meant by the “same role”? The regulations place the focus on the work and duties performed during the assignment, so if the only difference is that the agency worker moves to a different department, this will not be a new role. If the work and duties are substantially different, it will only be deemed a new role if we notify the agency worker in writing about the type of work they will be doing has changed. This is to ensure that the temp understands that the change in role may delay them reaching the 12-week qualifying period.
- Any week in which the agency worker works for the client will count towards the 12-week qualifying period, even if they only work for just one day in the week. The agency worker does not have to work for 12 weeks continuously; they can have breaks. The regulations state that if the agency worker takes a break of 6 weeks or less and returns to the same role with the same client, they will continue to accrue weeks towards the 12-week qualifying period. If there is any sickness or injury (up to 28 weeks off) this will not be considered a break. There are other conditions but refer to manual.
- It will be important when we register/interview candidates that we identify if they have worked for a client in the same role before. They may have accrued some weeks or even completed the 12 weeks meaning that they could be immediately entitled to equal pay and working conditions.
- These regulations come into effect on the 1st October, so any time spent on an assignment before the 1st October will not count towards the qualifying period.
- Can agencies or clients manipulate assignments to avoid the 12-week qualifying period? The regulations include anti-avoidance measures and it would be very risky for either party to do this.
What happens if we don’t follow the regulations?
The agency will be liable for any breach of a right in relation to equal treatment for which we are responsible, so long as we have taken reasonable steps to obtain the information from the client in determining the temps working and employment conditions. If the client breaches their responsibilities, they will also be liable.
After the 12 weeks have elapsed, an agency worker will be able to request written information from the agency or the client about any aspect of equal treatment, which they do not believe they are receiving. The agency or the client will each have 28 days to respond.
As mentioned before, pregnant women will be allowed paid time off to attend medical appointments and antenatal classes. They will also need to be found alternative sources of work on a pay rate that is no less favourable than the last assignment, if they can no longer complete the duties of the original assignment for medical reasons. If alternative work cannot be found, then the pregnant woman will have the right to be paid by the agency for the remaining expected duration of the assignment. (This is unlikely to happen very often, but need to be aware)
Current Temp to perm fees structures will remain as they are under the new regulations.
Recruitment agencies supplying agency workers to clients via intermediaries, master or neutral vendors or umbrella companies must be aware of their liabilities. As master vendor, we must ensure that any second tier suppliers have access to the necessary information, either at the time of the booking request or when the assignment approaches the 12th week mark.