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Agency Workers Regulations Guide

  1. Summary
  2. General Principle of Equality
  3. Qualification period
  4. Rights to information on vacant positions
  5. Equality in Practice
  6. Maternity
  7. The Comparator
  8. Liability
  9. Enforcement Process
  10. Obligations on collective consultation

Summary

The Agency Workers Regulations came into force on 1 October 2011. The Regulations apply to agency workers who find temporary work through a temporary work agency. The language is not consistent with the Conduct Regulations and actually the regulations apply to agency workers contracted through an Employment Business and not an Employment Agency. They do not apply to the genuinely self-employed, those employed directly by the end user or those who are employed on a managed service contract. “Umbrella companies” or other intermediaries will not, however avoid the scope of the Regulations.
Thus the AWR is intended to protect agency workers,

  • supplied to hirer via a temporary work agency
  • supplied to hirer via an intermediary (i.e. master/ neutral vendors and so called ‘umbrella’ companies)

General Principle of Equality

Equal treatment’ for agency workers comparative to those recruited directly by the end user. There are however certain caveats and conditions:

  • There is a 12 week qualification period before the entitlement comes into effect
  • Equal treatment’ is limited to basic terms and conditions (see below)

It is important to note that it is not possible for an agency workers to agree to contract out (i.e. disapply) the protection.

Qualification period

The agency workers must have worked in the same role with the hirer for 12 continuous calendar weeks (not necessarily with the same agency). The period is measured in weeks not hours and continuity is broken when:

  • There is a break of six weeks, or more, during or between assignments in the same job
  • The agency workers commences a new or substantively different role

Certified sickness absence and annual leave both pause the period of service. In the case of pregnancy related absence, maternity leave, adoption leave and paternity leave, the qualifying period is not paused.

Rights to information on vacant positions

From day one the agency worker has:

  • a right to be informed of vacant posts within the hirer’s organisation
  • access to n site facilities such as Canteen and child-care facilities

Less favourable treatment with regard to access to or provision of these facilities may be justified on objective grounds for example, if the hirer is seeking to achieve a genuine business objective and the treatment is a necessary and appropriate way of achieving that objective.

Equality in Practice

The AWR lists basic working and employment conditions that apply within the definition of ‘equal treatment’. Essentially they are:

  • Pay (but not bonuses related to long term incentivisation)
  • Duration of working time
  • Length of night work.
  • Rest periods
  • Rest breaks
  • Annual leave

Maternity

There is no requirement to pay maternity leave benefits to the agency worker. However, the following should be noted:

  • Pregnant agency workers have a right to time off for ante-natal appointments
  • Health & Safety duties apply for pregnant Agency workers or new mothers. This includes provision of reasonable alternative work, if required, or payment for the duration of the assignment if no alternative exists.

The Comparator

The agency worker will have to compare themselves with a directly-recruited comparator (whether real or hypothetical) at the hirer’s organisation as well as identifying relevant terms and conditions that are ordinarily included in such a person’s contract. The comparator may be a worker or an employee.

Liability

Liability for ‘equal treatment’ lies with the agency. However where the agency has taken reasonable steps to obtain relevant information, then liability for breach will lie with the hirer. In more complex cases an Employment Tribunal may apportion blame. It is firmly the hirer’s responsibility to provide access to facilities and job vacancies.

Enforcement Process

After completion of the qualifying period, an agency worker can submit a written request to their agency. Then:

  • The agency has 28 days to provide this information
  • After 30 days, if not received, the agency worker can request this directly from the hirer. The hirer has 28 days to respond
  • If unresolved, the agency worker may bring an Employment Tribunal claim

Obligations on collective consultation

Details of Agency Workers must be provided during;

  • Collective redundancy
  • TUPE and other statutory consultations
  • Collective bargaining

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This publication is intended for general summary guidance. It is not and should not be considered legal advice. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.