This guide can be downloaded in PDF format here
With the AWR coming into force on 1st October 2011 it is essential that organisations have the knowledge and tools to deal with the change in legislation effectively. The regulation itself is quite complexand therefore we have put together this 'at a glance' guide that you can refer to as you start to implement AWR.
A lot of the key issues concerning the Agency Workers Regulation are included, giving you an overview to guide you through the changes with ease.
The Temporary Agency Workers Directive 2008 was brought about 'to provide agency workers with entitlement to the same or no less favourable treatment with respect to basic employment and working conditions, if and when they complete a 12 week qualifying period' The Regulation will apply to agency workers who find temporary work through a temporary work agency, whether or not they are contracted via an 'umbrella'company or other intermediary. The Regulations will not apply to the genuinely self-employed or those who are employed on a managed service contract.
The Leqislation
From Day 1:
From 1st October 2011 agency workers will be entitled to access collective facilities and amenities e.g. car parking, childcare facilities, transport service, canteen or break rooms, food and drinks machines... Also you can access information on job vacancies within the organisation you are working for.
After 12 weeks in the same job at the same company:
The equal treatment entitlements relate to pay and other basic working conditions such as annual leave, rest breaks, holiday entitlement, specific bonus payments etc. and come in to effect after an agency worker completes a 12 week qualifying period in the same job with the same hirer. Excluded from the Regulation are those payments normally associated with employment status such as occupational sick pay, pensions' payments and redundancy Agency workers will remain agency workers and will not become employees. Equally the regulation does not give employees of the company any rights and therefore if an agency worker is paid more than a comparable employee, the regulations do not give the employee the right to be paid more.
The following table summaries what terms and conditions are included:
| Nature of Pay/Benefit | Applicable under AWR? |
| Yes | |
| Basic salary | Yes |
| Company holiday entitlement in excess of statutory entitlement | Yes |
| Overtime payments | Yes |
| Unsociable hours payments (e.g. shift allowances, danger money) | Yes |
| Restrictions on niqht work | Yes |
| Vouchers or stamps with money value (e.g. luncheon vouchers) | Yes |
| Personal performance bonus (e.g. commission and/or lined to personal output) | Yes |
| Bonus based upon organisational performance (e.g. company share of profit related schemes | No |
| Company sick pay in excess of statutory entitlement | No |
| Notice periods / redundancy pay | No |
| Company maternity/paternity/adoption pay in excess of statutory entitlement | No |
| Occupational pension contributions or schemes | No |
The questions of bonus schemes
Under the AWR, agency workers will be eligible only for bonus that is related to their persona; performance. Therefore agency workers will not be entitled to bonus which relates wholly to organisational performance (e.g. company share or profit related schemes)
However, this means thatwhere hirers operate 'hybrid' schemes that contain elements based upon individual and company performance, the element relating to the agency workers performance will have to be identified and paid to the agency worker.
| Included | Excluded |
| Commission linked to sales | |
| Individual KPI's e.g. call handling | Lovalty or retention bonus |
| Individual performa nce | Bonus reflecting organisational performance with no recognition for individual contribution |
How is the qualifying period calculated?
To make a claim for equal treatment under the AWR, the agency worker must have worked in the same role with a hirer for 12 continuous calendar weeks. lt is important to note that:
- Certain situations 'pause' the qualifying period .
- Continuity will only be broken after a 6 week gap or commencement of a new and substantively different role
- Part of a week worked will count towards qualification .
- The qualifying period can be completed by being supplied by several drfferent agencies
The following table summaries the different events that can pause or reset the qualifying period:-
| Event | Effect on qualifying period |
| Agency worker begins a new assignment with a new hirer | Clock resets |
| Agency worker remains with the same hirer but is no lonqer in the same role | Clock resets |
| Break between assiqnments of less than 6 weeks |
Pauses |
| Break of 6 weeks or more | Clock resets |
| Sickness absence | Pauses for up to 28 weeks |
| Annual Leave | Pauses |
| Workplace shut downs (e.g. factory or office closure) | Pauses |
| Jury service | Pauses for up to 28 weeks |
| lndustrial action | Pauses |
| Pregnancy and maternity related absence | Clock keeps ticking* |
| Statutory maternity, paternity or adoption leave |
Clock keeps ticking* |
*the protected period for a pregnant agency worker begins at the start of the pregnancy and ends 26 weeks after childbirth (or earlier if she returns to work)
* Where an agency worker has a contract of employment with an agency and is entitled to this type of leave
An example of the effecton the qualifying clock of an irregular work pattern with the same hirer and same assignment might be as follows:
| Week No. | Hours Worked | Effect on qualifying clock |
| 1 | 8 hours on Tuesday | 1 week accrued |
| 2 | 4 hours on Monday and Friday | 2 weeks accrued |
| 3 | Does not work | Clock Pauses |
| 4 | Does not work | Clock Pauses |
| 5 | Works 35 hours | 3 weeks accrued |
| 6 | 8 hours on Tuesday | 4 weeks accrued |
| 7 | 2 hours Monday and Friday | 5 weeks accrued |
| 8 | Does not work | Clock Pauses |
| 9 | Works 35 hours | 6 weeks accrued |
| 10 | Does not work | Clock Pauses |
| 11 | 4 hours on Saturday | 7 weeks accrued |
| 12 | 3 hours on Friday | 7 weeks accrued |
Frequently Asked Questions
Who is in scope under the AWR?
An agency worker is defined under the AWR as'an individual supplied by a temporary work agency to work temporarily for and under the supervision and direction of the hirer, The fact that an individual is supplied via an intermediary (such as master and neutral vendors and 'umbrella'companies) does not prevent the individual from being an agency worker for the purposes of AWR.
Only those genuinely in business of their own account (the self employed) will be out of scope.
Can agency Workers opt out of AWR?
No. Any provision in an agreement which attempts to exclude the AWR will be void.
Can hirers structure assignments to avoid AWR?
The AWR contain a number of anti avoidance provisions, which if breached can result in additional awards of up to £5000 on top of any outstanding pay/benefits owed to the agency workers as decided in an employment tribunal.
Seeking to manage your workforce in such a way as to avoid agency workers from completing the qualifying period will risk serious financial and reputational damage.
Unlike workers directly employed, agency workers do not have rights to claim unfair dismissal or claim redundancy pay. This makes them a flexible resource to employers to meet unexpected peaks in demand and coverforabsence. Employing workers directJy. Even on zero hours contracts, means workers may qualify for those additional rights.
As a hirer, what are my responsibilities to the Agency?
lf you are an employer and hire temporary agency workers through an agency you will need to provide your agency with up to date information on your terms and conditions so that they can ensure that an agency worker received equal treatment, as if they were recruited directly after 12 weeks in the same job. You are responsible for ensuring that all agency workers can access your facilities and are able to view information on your job vacancies from the 'first day' of their assignment with you.
Holiday Pay Entitlements - how are these calculated?
In relation to paid holiday leave, all workers have a statutory entitlement to 5.6 weeks per year (based on their working pattern - someone working five days a week is entitled to 5.6 x 5 = 28 days) which can include bank and public holidays.
Under AWR if a hirer would have given a more generous contractual leave entiflement to the agency worker if recruited directly to fill the same job, the agency worker concerned should receive the same enhanced entitlement once the 12-week qualifying period has elapsed.
There will be many differing entitlements to paid holiday leave provided by hirers and a possible way of simplifying the administration of this entitlement is to deal with any additional entitlement - over and above statutory entitlement - as a one off payment at the end of the assignment or as part of the hourly I daily rate.
How are complaints handled?
After completion of the 12-week qualifying period, and provided the assignment is continuing. an agency worker is entitled to submit a written request to their agency for the following information:
- Relevant basic working and employment conditions in force
- The factors considered by the agency when determining the basic working and employment conditions applicable to the agency worker, and
- lf appropriate, the basis upon which a comparatorwas identified, and the relevant terms and conditions applicable to that comparator.
Upon receipt of such a request, the agency has 28 days to provide the information to the agency worker. lf this information is not provided by the agency within 30 days of the request.
The agency worker may refer the request directly to the hirer. The hirer will then have to respond to this request within 28 days. First Choice would of course respond to any such requests from agency workers.
and a final note...
Agency workers will continue to form an integral part of the UK workforce as we adjust to overcome economic instability. Following the introduction of AWR we may well see that the use of agency workers becomes of greater stategic important, with hirers and agencies working more closely together to plan effectively for the development of a flexible workfrcrce. The introduction of AWR will mean that hirers will look for fusted recruitment partners who can demonstrate the capability to provide the tracking and reporting processes necessary to comply with the AWR.
For many hirers this will mean moving towards closer relationships with fewer, trusted agencies who can support them in managing compliance.
At First Choice we will seek to work with our clients as a fusted partner, offering comprehensive, flexible resourcing models, efflicient processes and rbk management strategies to assist them during the infoduction of the AWR.
For a full copy of the BIS (Department for Business, Innovation and Skills) Agerrcy Workers Regulations Guidance May 2011 refer to: www.bis.qov.uk.
