Introduction
The Agency Workers Regulations came into force on the 1st October 2011.
the recruit group has spent a considerable amount of time , working with the department of Business Innovation and Skills helping them prepare guidance designed to help employers agency workers and employment tribunals with their understanding and interpretation of the AWR regulations.
The Agency Workers Regulations are designed to give equal treatment to Agency staff.
trg has created this section to provide information for its colleagues.
If you need further impartial AWR advice please look at Section 2.
In addition if these links have not answered your questions or you have a enquiry that is specific to a trg site then please email our legal team awr.help@therecruitgroup.com
We will endeavor to deal with all questions as soon as possible but please note we may take up to 48 hours to respond to your question, and it is advisable that you include information such as your name and site so we can best answer your question. This email address will only respond to AWR related questions.
Frequently asked questions
1. What are the Agency Workers Regulations (“the AWR”)?
The AWR are designed to provide agency workers with the right to the same basic employment and working conditions they would have enjoyed had they been recruited directly by the hirer.
2. When will the AWR come into force?
1st October 2011.
3. Who does the AWR apply to?
The AWR will cover ‘regular’ agency workers and workers supplied through ‘intermediaries’ including workers employed by umbrella companies. They will not cover those who are genuinely self-employed or those provided through managed service companies.
Those agency workers who have entered into a contract of employment with the Company, which contains a heading entitled “Agency Workers Regulations 2010” and complies with Regulation 10 of the AWR, will not be entitled to equal treatment in respect of pay or holiday pay but will be entitled to all other AWR entitlements. This contract is often referred to as the “Pay Between Assignments” contract and is expanded upon further in question 8 below.
4. What are AWR rights?
In summary:
Day One Rights – Agency workers are entitled to the same access to the hirer’s job vacancy lists as a comparable employee and the same access to collective facilities and amenities such as canteen and childcare facilities from the first day of their assignment, or if already on assignment prior to 1 October 2011, from 1 October 2011.
Week 12 Rights – Agency workers who have reached the 12 week qualifying period are entitled to the same basic working and employment conditions as if they had been employed directly by the hirer on a day one basis – this is called a comparator. This comparator needs to be equivalent to the pay that would be offered if a role were advertised today. These basic working and employment conditions include:
- duration of working time
- rest breaks
- rest periods
- night work
- holidays
- pay
5. What does equal treatment in relation to “pay” include?
This includes basic pay plus other contractual entitlements directly linked to the work undertaken by the agency worker whilst on assignment, such as:
- overtime
- shift allowances
- unsocial hours premiums
- holiday pay
- bonuses that are directly linked to the quality or quantity of work done
- vouchers or stamps with a monetary value e.g. lunch, transport or childcare vouchers unless they are funded on a salary sacrifice basis.
6. 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 and/or to encourage loyalty such as:
- profit sharing schemes
- occupational pension contributions
- occupational sick pay
- enhanced redundancy pay
- enhanced maternity pay
7. How is the 12-week qualifying period calculated?
The qualifying week starts with the first day of the assignment, e.g. if an agency worker’s assignment started on a Thursday, their qualifying week for that hirer would be Thursday to Wednesday. The agency worker will acquire a qualifying week, even if he has only worked for 1 hour in that week.
Whether or not an agency worker reaches the 12 week qualifying period can be complicated, as a number of different rules apply. As a general rule, if an agency worker has worked for a consecutive period of 12 weeks for a hirer, he will have reached the 12 week qualifying period but if the agency worker starts a new assignment with the same hirer, which is a substantively different role, OR if there is a break of more than six weeks between assignments in the same role, then the qualifying period clock will be reset to zero.
Any time worked before 1st October 2011 will not count towards the qualifying period for equal treatment. Workers on assignment on 1st October 2011 will however qualify for day one rights. (See question 4 above).
8. What is a Pay Between Assignments contract?
Those agency workers who have entered into a contract of employment with the Company, which complies with Regulation 10 of the AWR, will not be entitled to equal treatment in respect of “pay” (as referred to in question 5 above), but the agency worker would still be entitled to all other elements of the AWR. Under this contract, if such an agency worker was available to work, but the Company could not offer that worker any suitable work, the agency worker may be entitled to receive a sum called the “Minimum Amount”, even though the agency worker is not actually working. The agency worker would be entitled to this Minimum Amount for no less than 4 weeks. This is, however, dependent on various factors as specified in the contract itself.
9. How is the Minimum Amount calculated?
In summary, the Company will find the pay reference period that the agency worker received the highest pay in respect of hours worked in the last 12 working weeks of their assignment (unless their assignment was less than 12 weeks, in which case the Company will find the pay reference period he/she received the highest pay during that assignment). The Company will then pay the agency worker 50% of such amount, unless National Minimum Wage multiplied by the hours he/she worked in that week is higher, in which case the agency worker will receive the latter.
10. What can agency workers do if they have questions about AWR?
The Company suggests that any concerns regarding the application of the AWR should be raised informally in the first instance with the Company’s human resources department. The AWR also permits agency workers to make formal written requests for information about their entitlements and the factors that have been considered when ensuring they receive rights under the AWR. Upon receipt, we will endeavour to respond to such written request within 28 days. If the agency worker does not receive a response within 28 days, he/she can submit such request to the hirer.
SECTION 2 IMPARTIAL AWR ADVICE
If you would like information on the Agency Workers Regulations then please see our
FAQ SECTION.
Alternatively if you still have any questions then we suggest the following impartial governmental and non governmental organisation links below.
The Department of Business Innovation and Skills
http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf
The department of Business Innovation and skills guidance was published to assist everyone in better understanding the AWR.
ACAS
http://www.acas.org.uk/CHttpHandler.ashx?id=1304&p=0
ACAS Guidance was published back in 2009 and gives an interesting read in respect of certain views of the AWR.
Direct.gov (link)
http://www.direct.gov.uk/en/Employment/Understandingyourworkstatus/Agencyworkersandemploymentagencies/DG_198930
http://www.direct.gov.uk/en/Nl1/Newsroom/DG_199272
The Direct.gov website explains the AWR and Pay between assignment contracts, it is a great source of information for the public and is created by the government.
Further information can be found by searching online. We would suggest that you seek full advice in relation to the Agency Workers Regulations as there is a lot of mixed information in circulation about this Act and the changes it will make.
Remember trg is here for you and any questions that you may have we will be happy to answer.
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