Agency Workers Regulations (AWR)
Many organisations use agency staff as a cheap temporary solution to seasonal work fluctuations, staff absence and short term projects however the introduction of the Agency Workers Regulations on 1 October 2011 may make this option more expensive.
This quick guide outlines the key points of the regulations and how they may affect anyone working with agency workers after 1 October 2011.
What is the AWR?
Day 1 rights for agency staff
- access to facilities e.g. car parking, canteen
- time off for antenatal appointments for pregnant agency workers
- able to access information about internal vacancies
New legislation designed to give agency workers the same basic working and employment conditions as directly employed staff in the same role.
The equal treatment comes into effect after a 12 week qualifying period which will start on 1 October 2011 (not retrospective).
What is Equal Treatment?
As well as the Day 1 entitlements above after 12 weeks agency workers will be entitled to the same pay and conditions as your directly employed staff doing the same role. If there are no similar roles the entitlement would include conditions which normally apply in the workplace.
What is included in ‘pay and conditions’?
- basic pay rate
- annual pay awards
- overtime and shift premiums
- bonuses related to the quality or quantity of work done
- “Luncheon“ vouchers with monetary value
- hours of work, rest and breaks
- holiday entitlement above the statutory minimum
What is excluded from ‘pay and conditions’?
- bonuses and benefits intended to reward loyalty or long service
- company share schemes
- pensions
- sick, maternity, paternity or adoption pay above the statutory minimum
- redundancy payments
- contractual notice
How is the 12 week qualifying period calculated?
The right to equal treatment does not apply until the agency worker has been in the same role with the same hirer for 12 continuous calendar weeks.
A new qualifying period will only start again where:
- there has been a break of 6 weeks or more
- the agency workers completes an assignment for a different hirer
- the agency worker starts a new role with the same hirer which is substantively different
There are rules about breaks of 6 weeks or more where they do not restart the qualifying period when the cause has been:
- sick leave of up to 28 weeks’
- statutory or contractual leave
- jury service of up to 28 weeks’.
- customary workplace shutdown e.g. Christmas
- contractual annual leave
- a strike at the hirers workplace
The following breaks actually count towards the qualifying period
- pregnancy, childbirth or maternity which take place during pregnancy and up to 26 weeks after childbirth.
- any breaks due to the worker taking maternity leave, adoption leave or paternity leave.
What are the penalties?
The award will be to make up the difference (as with National Minimum Wage claims) with a minimum level of 2 weeks’ wages. A £5,000 penalty can be applied if the Employment Tribunal decide that assignments have been deliberately structured to avoid the AWR.
What do I need to consider if using Agency Workers?
- inform the agency of your terms and conditions
- ensure you have costed agency workers based on equal treatment if they are likely to be with you for over 12 weeks
- post your internal vacancies where agency staff can see them
What are the alternatives to using agency staff?
- zero hours contracts (E)
- casual workers pool for adhoc requirements e.g. sickness cover (W)
- outsourcing
- use self employed contractors
- fixed Term Contracts e.g. maternity cover (E)
- increased overtime (E)
E= Employee
W= Worker
Some of the above alternatives offer more legal protection to the individual than the AWR provides, particularly where E or W employment status is shown.
The full AWR guidance can be obtained by clicking on the following link:
Or if you don’t fancy going through all that paperwork... why not call Sian or Fiona on 01865 261145 for advice!