Agency Workers Regulation Explained
On October 1st 2011 the Agency Workers Regulation will come into effect in the UK. The regulations are being implemented to ensure agency workers have the same relevant working and employment conditions as a comparable permanent worker at the same organisation.
The regulations have evolved from the EU Temporary Workers Directive 2008 which gives temporary workers the right to the same relevant pay and working conditions as those provided to the hirer's own staff. This means an agency worker will only be entitled to equal treatment once s/he has completed 12 weeks’ of service in the same role with the same hirer (there are two exceptions, relating to access to the client’s facilities and information on vacancies at the client which apply from day one of an assignment). The Regulations also give pregnant agency workers new rights. The regulations will not apply to those that workers that are genuinely self employed.
Kelly Services has been working closely with the Recruitment and Employment Confederation (REC) to develop a series of AWR Factsheets, designed to give you an in depth overview into key areas of the new legislation. The factsheets are available in a PDF format, giving you the option to download them to your PC for quick reference access. This is a large piece of legislation, as such we can not cover all the detail in our factsheet series, but if at any time you have any questions on the upcoming legislation please contact us. You can arrange a time to speak with a member of the team, or simply email your questions to firstname.lastname@example.org
Defining an Agency Worker
- The regulations stipulate that an agency worker is an individual supplied by a temporary work agency to work under the supervision and direction of the hiring client.
- A worker can be an agency worker even if he works through an intermediary e.g. Umbrella company.
- Agency workers CAN NOT opt out of AWR.
Which Workers are Covered?
- Genuine self employed persons are excluded from AWR.
- Limited company contractors are agency workers if they are not genuinely self employed.
- Its up to the agency to decide if an individual is an agency workers for the purposes of AWR.
The Qualifying Period
- The agency worker is not entitled to equal treatment until s/he has completed the 12 week qualifying period.
- The agency worker must work in the same role with the hirer for 12 calendar weeks (any week during which the workers works is counted).
- If there is a break of 6 weeks or more then the qualifying period starts again (there are exceptions to this).
- Sick leave, holiday, or the first 26 weeks of maternity leave do not “break” the clock.
- Short but regular repeated assignments could accrue equal treatment rights with a number of different hirers at the same time.
- It is our responsibility to track the 12 weeks.
- The 12 qualifying period commences even if the agency worker has previously worked on the same assignment and client but through a different agency – there is no obligation of the agency worker to tell us!
Establishing Equal Treatment
- An agency worker is entitled to the same “relevant terms and conditions” as a comparable employee at the client.
- An employee is a comparable employee if the are both: -
- Engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills
- The comparable employee works at the same establishment as the agency worker.
- Once the comparator is established, the priority is to establish the correct rate of pay (and other working conditions which the agency worker is entitled and to be able to explain how this is worked out).
- Where there are no formal pay bands we need to establish the salary the hirer would have paid if they were recruiting that agency worker directly.
- You can justify different pay rates based on experience and qualifications.
- Basic pay, overtime and shift premia.
- Certain bonuses and commission payments.
- Holiday pay
- Duration of working Time
- Night work
- Rest periods
- Rest breaks
- Annual leave
- Occupational sick pay
- Maternity, paternity and adoption pay
- Enhanced redundancy payments
- Financial participation schemes
- Bonuses awarded to an appraisal system aimed at long term management, motivation and retention of staff.
What Else is Covered?
- The right to access collective facilities i.e. Canteens, child care facilities, car parks.
- The right to be informed by the client of any relevant posts.
- Pregnant workers have the right to be paid when attending ante-natal appointments.
- Pregnant workers must be offered suitable alternative work. If this does not happen the agency worker should be paid for the duration that it is expected the assignment would last.
How will the regulations be Enforced?
- They will be enforced via employment tribunals.
- The agency worker can bring an employment tribunal claim for an alleged breach.
- The tribunal can award compensation of not less than two weeks pay (there is no maximum award). Also any other expenses or losses incurred
- Where assignments are deliberately arranged to avoid AWR compensation is up to £5,000.
Kelly Services are working through all the above legislation to ensure we provide a smooth and affective transition period for all our customers. Our expertise in recruitment legislation will help ensure all our customers are fully aware of the upcoming legislation and the impact it will have on their business. As a member of the REC (Recruitment and Employment Confederation) Kelly Services has access to a wide support network from industry experts who provide consultative, independent advice on how to ensure correct implementation.
If you would like to speak to a member of the Kelly Services team about the upcoming AWR legislation and how it may impact your business please email: email@example.com. and speak to a member of our AWR expert working party.