Agency Workers Regulations 2010

What does it mean for employers?

The Agency Workers Regulations 2010 (AWR) came into force on 1 October 2011, giving agency workers, for the first time in British law, the right to equal treatment in relation to pay, holidays and certain other basic working and employment conditions as directly recruited permanent staff after 12 weeks in a given job. In addition, from the first day of their assignment, agency workers will be entitled to equal access to on-site collective facilities and information about internal vacancies in the hirer to give them the same opportunity as other workers to find permanent employment.

The key points of the legislation are:

• The AWR apply to temporary work agencies (including intermediaries), agency workers and hirers.
• The AWR are likely not to apply to those genuinely in business on their own account, Managed Service Contract staff, in-house temporary staffing banks, secondments and those who find permanent employment with an employer through an employment agency.
• Day one entitlements: if you hire agency workers, you must ensure they can have access to your collective facilities and information on your job vacancies from the first day of their assignment:
• From day one, all agency workers will be entitled to equal access to collective facilities and amenities as provided by the hirer to comparable directly employed staff. Collective facilities may include a staff canteen, transport services, toilets/shower facilities, staff common room, prayer room, car parking and crèche facilities. However, a failure to provide agency workers with equal access to collective facilities will not be unlawful if it can be objectively justified.
• From day one, all agency workers will also have the right to be provided with information about any relevant job vacancies within the hirer that would be available to a current comparable directly employed worker.
• The hirer is responsible for providing equal treatment for day one entitlements and is solely liable for any breach of these provisions.
• After 12 weeks in the same job: these new equal treatment entitlements relate to basic working and employment conditions and come into effect once an agency worker completes a 12 week qualifying period in the same job with the same hirer. The requirement is to afford the agency worker the same basic working and employment conditions as they would have received if they had been directly recruited by the hirer to the same job.
• The principle of equal treatment only applies in respect of pay, the duration of working time, night work, rest periods and breaks, annual leave and paid time off for ante-natal appointments. Any other terms and conditions of employment are outside the scope of the AWR.
• The 12 week qualifying period is triggered by working in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments. Calendar weeks will be accrued regardless of how many hours the agency worker works on a weekly basis and the AWR provide for a number of circumstances in which breaks in the assignment of the worker do not prevent them from completing the 12 week qualifying period.
• The AWR also contain anti-avoidance provisions to address any situation where a pattern of assignments emerge that are structured to deliberately prevent an agency worker from completing their qualifying period. If the employment tribunal decides there has been a breach of the anti-avoidance provisions, it can impose an additional award of compensation of up to £5,000 against the hirer or agency or split between the parties in a just and equitable way.
• ‘Pay’ is any sums payable to the agency worker in connection with their employment, including any fee, bonus, commission, holiday pay or other emolument referable to employment. Most benefits in kind and sick pay are excluded from the definition of pay and only bonus and commission payments which are directly attributable to the amount or quality of the work done by the worker personally are included within the definition of pay.
• The hirer will need to provide the agency with information on basic working and employment conditions no later than when the worker completes the 12 week qualifying period. Agencies will then need to factor into their charges to the hirer any increases in entitlements that are necessary to implement at the 12 week point.
• If a pregnant agency worker can no longer complete the duties of the original assignment for health and safety reasons, she will need to be found alternative sources of work, paid at the same or higher rate than the original assignment. If alternative work cannot be found, the pregnant worker has the right to be paid by the agency for the remaining expected duration of the original assignment.
• In relation to a claim relating to lack of equal treatment in basic working and employment conditions, liability can rest with either the agency and/or the hirer to the extent that each is held to be actually responsible for the failure. If the tribunal upholds an agency worker’s complaint, it can order financial compensation, make a declaration and/or recommend that the hirer or agency take certain action to remove the adverse effect on the agency worker.
• As far as financial compensation is concerned, the tribunal will make an assessment of the agency worker’s loss and calculate what it concludes is just and equitable compensation. There is generally a minimum award of two weeks’ pay and there is no maximum limit to the compensation that can be awarded.
• The agency and/or the hirer must not subject an agency worker to detrimental treatment or dismiss them because they have taken, or sought to take, action to enforce their rights under the AWR.