Agency Workers Regulations: Key points
The second part of our seminar last week covered the new Agency Workers Regulations (AWR) in order to help companies prepare for the changes which come into effect on 1st October in England Scotland and Wales — that’s this Saturday. In Northern Ireland, such regulations come into force on 1st December 2011.
Bond Williams Director Rob Bond and Frettens Employment Lawyers Paul Burton went through the regulations, what they mean and what needs to be done in order to be compliant. Because it is imperative that hirers understand the regulations, assess the impact they will have on their business, put effective systems in place to adhere to regulations and work closely with their agencies to minimise the cost and disruption caused by the changes, we have put together a brief run-through for our blog readers. It is also a good idea to download and read the guidance notes provided by The Department of Business, Innovation and Skills (BIS) which you can find here.
The AWRs stem from the EU Temporary Workers Directive 2008, which gives agency workers the right to the same pay and working conditions as the hirer’s own employees. The regulations do not alter agency worker’s employment status, however — they do not make an agency worker an employee of either the hirer or the agency.
This right to equal treatment comes into effect after working in the same role with the same hirer for 12 weeks, unlike other parts of the EU in which equal treatment comes into effect from the first day working at an organisation.
There are two exceptions with this, though, which are the ‘Day One rights’ that agency workers are entitled to from the first day of working within an organisation. These are that agency workers must have the same access to information regarding existing vacancies in the hirers’ organisation as other employees from the beginning, and agency workers will be entitled to the same on-site facilities such as childcare facilities, canteen and car parking. Exceptions within this occur when there are objective grounds for refusal, such as if there is already a waiting list for such facilities. ‘Amenities’ such as gym membership and season ticket loans are out of scope as they are considered to be a reflection of the long term relationship between an employee and a hirer and not appropriate for agency workers. The BIS guidance notes provide more detail on the benefits agency workers will and won’t be entitled to.
The regulations define an agency worker as: An individual who is supplied by a temporary work agency to work temporarily under the supervision and direction of a hirer and who has a contract of employment or any other type of contract (a contract for services for example) under which they provide their service personally for the agency.
Workers who are genuinely in business on their own account (i.e. genuinely self-employed) will not be within scope and the AWRs do not apply to workers in permanent jobs, even if they were introduced by an agency.
Workers on managed service contracts (i.e. those where the supplier manages or directs staff, rather than the hirer, such as in an outsourced IT or catering contract) are excluded, unless the hirer rather than the service supplier supervises and directs the staff, or if they are supplied from another agency to the managed service provider.
The definition of agency workers under these regulations is irrespective of whether the individual works part of full time, as well as it being irrespective of how many agencies supplied the agency worker to do the same role at the same hirer.
A new qualifying period of 12 weeks might begin if a new assignment with the same hirer is substantively different, or if there is a break of more than six weeks between assignments in the same role. The qualifying period will be paused (rather than stopped) if the worker takes a break of six weeks or less, certified sick leave (for no more than 28 weeks), maternity, paternity or adoption leave or time off for public duties (such as jury service). Pregnant agency workers will be entitled to paid time off to attend medical appointments and antenatal classes once they have surpassed the 12 weeks qualifying period.
There are legitimate ways, however, to derogate from the regulations — where an agency worker has a contract of employment with the agency, they are not entitled to equal pay, but will still be entitled to equal treatment in working conditions and the ‘Day One rights’.
The regulations do contain anti-avoidance measures in order to prevent agencies and hirers from structuring assignments in a way to prevent the workers from reaching the 12 week qualifying period. This includes supplying a worker to connected hirers, rotating workers or repeatedly terminating and recommencing assignments. In the event that the tribunal finds that the regulations have been deliberately avoided they can award an agency worker compensation of up to £5000.
The tribunal can reward compensation to an agency worker where they have suffered in other areas as a result of a breach of the regulations. Compensation will normally be based on the worker’s losses but will not be less than two weeks’ pay. The hirer and the agency will need to work together to ensure that the agency worker receives equal treatment after the 12 week qualifying period.