The Agency Worker Regulations (AWR)

What are the Agency Worker Regulations (AWR)?

The main principle of AWR is to give equal treatment to temporary workers (defined by the Regulations as agency workers), in line with comparable permanent employees or directly recruited workers, with regard to pay and certain other working conditions after 12 weeks in an assignment. The AWR arise out of the European Agency Workers Directive.

Who do the Agency Worker Regulations apply to?

All temporary workers including those employed through umbrella limited companies although workers who are genuinely self employed are excluded.

Who qualifies for equal treatment?

Although there are some Day One rights, to qualify for equal treatment with regard to basic working and employment conditions the agency worker must have been engaged by the hirer, in the same or similar position, for a period of 12 continuous calendar weeks (the “qualifying period”).

There are circumstances (See Qualifying Clock Section below) in which this qualifying period is paused, or reset to zero, but generally the qualifying period will accrue unless there is a break of more than 6 calendar weeks.

It is not the intention of the legislation to give preferential treatment to agency workers over and above that given to permanent employees or directly recruited workers. It is also important to note that the Regulations do not give agency workers employment status.

What is meant by equal treatment?

There are two types of equal treatment rights – Day One rights where the temporary worker is given equal access to facilities and amenities as well as being entitled to be informed of suitable internal vacancies and “Week 12” rights where the agency worker is entitled to the same pay and working conditions as a comparable direct employee.

What rights do Agency Workers have on Day One?

From day 1 of their assignment, agency workers will be entitled to:

• be informed by the hirer of relevant job vacancies within the hirer’s organisation
• access to collective facilities and amenities, such as a canteen, childcare facilities, or transport services. This does not include access to off-site facilities or amenities, which are not provided by the hirer, such as subsidised access to an off-site gym as part of a benefit package to reward long-term service or loyalty, or other types of benefits such as the ability to purchase discounted goods in a staff shop, or subsidised canteen meals.

Benefits such as season ticket loans, and childcare vouchers are not generally classed as amenities and are therefore not included in these day one entitlements.

What rights do Agency Workers gain after the 12 week qualifying period?

After the 12 week qualifying period, Agency workers will be entitled to the same basic working and employment conditions as if they had been recruited directly by the hirer, which includes:

• pay being any sum payable to the worker, including any fee, commission, bonuses, overtime, shift allowances, payment for annual leave (over and above the statutory entitlement, and any other payments, which are directly attributable to the amount or quality of the work undertaken by the agency worker;
• The duration of working time, rest breaks, rest periods and night work
• Annual leave (over and above the statutory entitlement).

What rights do Pregnant Workers and New Mothers gain after the 12 week qualifying period?

There are two entitlements that Pregnant Workers and New Mothers gain after the 12 week qualifying period:

Pregnant agency workers will be entitled to take paid time off for ante-natal medical appointments and classes whilst on assignment.

If an agency worker is pregnant or a new mother, and they cannot continue to carry out the duties of their assignment due to health and safety reasons, they must be found suitable alternative work, paid at the same rate or higher. If no alternative work can be found for them, the agency must continue to pay the agency worker for the duration or expected duration of the original assignment.

This entitlement does not extend an agency workers maternity rights beyond those to which they would otherwise have been entitled.

How is the qualifying period calculated?

The qualifying period starts on the first date of an agency workers assignment and the agency worker’s services must have been engaged for a period of 12 continuous calendar weeks working in the same role with the same hirer before they have the right to “Week 12” equal treatment rights.

The qualifying period is irrespective of whether an agency worker works full or part-time.

The Qualifying Clock

 

 The clock resets if…

The agency worker begins a new assignment with a new hirer

or there is a break between assignments for any reason other than those included below, which is longer than 6 weeks.

or the qualifying period may also re-set to zero if the agency worker moves to a substantively different temporary assignment i.e. at a new hirer or within the same hirer but to a completely different role.

 

The clock pauses and then restarts if…

There is a break, for whatever reason of no more than six weeks for Annual Leave

or Seasonal shutdowns – including school holidays

or Industrial Action

or Jury Service – pauses the clock for up to 28 weeks

or Sickness Absence – certified sickness absence can pause the clock for up to 28 weeks

 

 

The clock continues…

In the case of pregnancy / maternity related absence

or paternity, maternity

or adoption leave

the clock carries on ticking throughout the absence or statutory protected period as if the temporary agency worker was at work.

How much holiday will agency workers be entitled to after the 12 week qualifying period?

After the qualifying period, agency workers will be entitled to the same terms and conditions, including working time and annual leave, as direct recruits.

For permanent teachers in schools maintained by an authority in England and Wales there is no specific provision in the STPCD for holidays or annual leave, therefore agency workers, working in schools will receive payment for statutory annual leave when they take the leave in accordance with the Working Time Regulations 1998, rather than AWR. 

How does a hirer ensure an agency worker receives the same basic working and employment conditions as a comparable employee?

Regulation 5 of the Agency Workers Regulation states that an agency worker, who completes a 12 week qualifying period is entitled to the same basic working and employment conditions as they would be entitled to for doing the same job had they been recruited directly by the hirer.

To ensure the agency worker is receiving the same basic working and employment conditions, then the hirer should look for a comparable worker who is an employed directly by the hirer who is doing the same or broadly similar work with comparable skills and qualifications to the agency worker  or provide relevant working and employment conditions the agency worker would receive if they were recruited directly by the hirer – this is often referred to as the “as if” test.

What is a comparable worker?

A comparable worker is an existing employee of the hirer working under its supervision and engaging in the same or similar work with comparable skills and qualifications to the agency worker.

What is the “as if” test? 

The "as if" test requires the hirer to confirm what terms and conditions the worker would have been entitled to had they engaged them directly – there is no absolute requirement for the hirer or an agency worker to identify a comparable employee.

However, the "as if" test will be deemed to have been complied with where the agency worker is working under the same relevant terms and conditions as an employee doing the same or broadly similar work (having regard, where relevant to whether they have a similar level of qualification and skills), and who is working or based at the same establishment as the agency worker.

In summary, the hirer may wish to identify a comparable employee to identify what the relevant terms and conditions should be and would need to identify a comparable employee in the event of an alleged breach.

When identifying a comparable employee, if there is no comparable employee working at the same establishment then the comparison should be extended across different establishments, if applicable.

Terms of established pay scales, collective agreements, national agreements and established custom or practice can be used to provide comparator information.

In most cases a hirer will be able to apply the "as if" test, but there will be some situations in which a hirer will be able to justifiably say that they would never take a worker on direct to do that type of work. If there is no comparable employee, the position is considered unique, however, the relevant terms and conditions standard to that work place should still be applied.

Where agency workers are paid more than comparable employees, no action needs to be taken with regards to Pay. However, the agency worker will still be entitled to other equal treatment, such as comparable annual leave.

To find out how AWR affects schools, academies and academy trusts, click here.

Further reading:

Department For Education's guidance for Schools, Academies, Free Schools and Independent Schools: Agency Workers Regulations: Supply Teachers

Department for Business Innovation and Skills (BIS) main AWR guidance for Hirers of agency workers and recruiters: Agency Workers Regulations 2010

If you have any questions about AWR or would like to discuss any of the points in this article further, then please get in touch with our team today.