The Agency Workers Regulations (AWR) came into force in England, Scotland and Wales on the 1st October 2011. The aim of the legislation is to give agency workers the right to the same basic terms and conditions as if they had been directly employed to do the same job by you.
To give you an understanding of what the AWR is and what they mean to you we have prepared a fact sheet.
The AWR came into force in England, Scotland and Wales on the 1st October 2011. The aim of the legislation is to give agency workers the right to the same basic terms and conditions as if they had been directly employed to do the same job, by the hirer. The AWR does not alter an agency worker’s employment status in any way; they will remain an agency worker engaged by Chadwick Nott.
Workers who are genuinely self-employed
on their own account, are exempt from the AWR, as are those engaged by companies providing a genuinely out-sourced service
There are two specific sets of entitlements that the AWR will give to agency workers who are supplied to you: Day 1 Rights (which applies to the agency workers on the first day of their assignment) and Week 12 Rights (which will apply once the agency workers have accumulated 12 Qualifying Weeks on their assignment).
As suggested in the name, Day 1 Rights will affect all agency workers from the first day of their assignment. Whereas before, they may have had restricted access to the on-site facilities enjoyed by your permanent staff such as the canteen, car parking, childcare facilities, or staff common room, the AWR means that the agency workers should be given no less favourable access than your comparable employees.
The AWR doesn’t always act to enhance agency workers’ rights, for example an agency worker cannot be barred from using the canteen (as long as the facilities are on your premises.) However, if you provide subsidised meals to your permanent employees, the subsidy will not necessarily extend to the agency workers. Similarly, if your establishment has a waiting list to access facilities such as a car park, the AWR will allow the agency workers to join the waiting list; it does not give them an automatic right to a car-parking space.
Under the Day 1 Rights you must also ensure that agency workers supplied to your establishment are notified of any relevant opportunities of employment at your establishment; however it will still be your choice who you wish to employ.
After the 1st October 2011, once your agency worker has accumulated 12 Qualifying Weeks working at your establishment in the same job role, they will be entitled to the same basic terms and conditions of employment as if they had been employed directly by your company.
The Week 12 Rights under the AWR ensure that agency workers receive the same:
- Basic Pay
- Paid Annual Leave
- Rest Periods and Rest Breaks
- Overtime and Shift Premiums
- Bonuses (only if related to performance)
An agency worker will acquire a Qualifying Week each time they complete a full 7 calendar day period of work. This can be through working a full week, or only a few hours a week, and it can be through more than one agency, so long as they are in the same job role, with the same hirer.
An agency worker may lose any Qualifying Weeks if:
- They begin a new assignment with a new hirer
- There is a break in the assignment of over 6 weeks
- They change the job role with the same hire
As comparable permanent employees, doing the same job, with the same skills and qualifications.
However, the AWR states that an agency worker’s qualifying clock will be paused (therefore they will not lose any accumulated Qualifying Weeks) where there is a:
- Break for any reason which is no more than six calendar weeks
- Break of up to 28 weeks because of sickness or injury
- Break of up to 28 weeks to perform jury service
- Planned shutdown of the workplace by the hirer (for example at Christmas)
- Strike, lock out or any other industrial action at the hirer’s establishment
Upon the return of your agency worker to their assignment, the clock will then continue as usual.
Any attempt to avoid the AWR is ill-advised, as an Employment Tribunal can potentially issue a £5,000 penalty
against your business, as well as requesting an immediate award to the agency worker to make up the difference to the agency worker, if they have missed out on pay they were entitled to.
It is essential that you ensure that all the necessary comparator information is sent to your Chadwick Nott Consultant, failure to do so is a breach by your company of the AWR.
Chadwick Nott is keen to work with you to assess what impact, if any, the AWR may have on your business. Please contact your usual Consultant or alternatively call us on 0800 0121 848.
Supported by our specialist in-house AWR team, an Impellam Group Plc discussion forum has been set up on LinkedIn where you are welcome to discuss any concerns you may have regarding the application of AWR.
To join the Group, please click here