The Agency Workers Regulations (AWR) is an EU directive which was implemented in the UK in October 2011. Designed to protect the working and employment conditions of contractors, freelancers and temporary workers, the directive had a wide range of implications for the staffing sector and its supply chain. Since the introduction of AWR, recruitment businesses using non-compliant umbrella companies leave themselves exposed to costly employment tribunals if a claim is upheld.
What are agency workers entitled to?
After a qualifying period of 12 weeks, any agency worker in the UK is entitled to the same basic working and employment conditions as they would be if they had been recruited and hired by the client to do the same job. This includes:
The right to equal treatment only applies to terms and conditions relating to working time, holidays and pay, such as:
Duration of working time
Overtime and night work
Breaks and rest periods
Holidays and public holiday pay
Collective facilities
The regulations do not extend to:
Maternity/paternity pay
Redundancy and notice pay
Payments related to pension entitlement
Bonuses not based on individual performance
Profit sharing schemes
Season ticket loans or car allowances
Occupational sick pay
What are day one rights?
Agency workers have certain rights that apply from the first day of their assignment, such as a right to access ‘collective facilities’ and amenities, e.g. a canteen or a crèche. They also have the right to be informed of any opportunities for permanent employment.
Who is liable for failure to provide equal treatment?
If a claim is taken to the Employment Tribunal, they will assign liability to whichever party it believes is responsible for causing the disadvantage to the worker. If your recruitment agency can prove that it has made reasonable efforts to establish equal treatment for the agency worker, the liability will lie with your company.
Work Wales response to AWR
As one of the most trusted and experienced providers in the industry, Work Wales has created compliant solutions designed to protect both ourselves and lower paid agency workers.
At Work Wales we have a compliant model in place for agency workers, our model ensures that an agency worker receives the same pay as their permanent equivalent after 12 weeks, however Work Wales deals mainly at a level where temporary workers supplied are paid at least at market rates. Therefore, we do not anticipate making significant adjustments generally and aim to ensure the temps' packages are compliant from day one.
We do not think it appropriate in the case of valued, high level agency temps to pay them less in the first 12 weeks of an assignment than they would be paid had they been directly engaged by you at the start of it. Indeed it could lead to a situation where clients who only pay AWR compliant rates after the 12 week qualifying period are unable to attract high calibre temporary staff.
What will we do?
We will complete a questionnaire with you ahead of each assignment to determine what the temp’s pay would be if you were to directly engage them. This would include determining the relevant:
Basic pay
Contractual paid holiday
Whether any individual performance related bonus would be due
Whether any commission would be payable in the role
Whether overtime or other premium rates would apply
Whether any vouchers with a monetary value would be due
The information you give may be based on a comparable employee or a pay grade but must be accurate as it will be relied on to ensure the worker is receiving the correct package. Where there is no comparable employee/pay grading equal treatment will be deemed.
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