The Agency Workers Regulations 2010 (“AWR”) will come into force on 1st October 2011.
The Regulations apply to agency workers performing temporary work for a ‘hirer’ through an employment business (‘agency’) and give agency workers two types of rights:
“Day 1 rights”
There are rights applicable from day one of an assignment to:
Liability for any breaches relating to ‘day one rights’ will rest solely with the hirer.
“12 week rights” or “Equal Treatment Rights”
Agency workers are entitled to receive equal treatment concerning ‘pay and conditions’ compared to those received by someone (the comparator) directly employed by the hirer, doing the same or broadly similar job with the same qualifications and skills.
‘Pay and conditions’ are those that ordinarily apply in the hirer’s workplace to the equivalent employee, for example: basic rate of pay; overtime and shift premiums; bonuses related to the quality or quantity of work done; vouchers with monetary value (e.g. “luncheon”); hours of work, rest and breaks; and holiday entitlement above the statutory minimum.
What is not included are: 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; guarantee payments.
To qualify, the agency worker must have worked in the same assignment for 12 continuous weeks. Various provisions in the regulations mean that in practice the 12 week clock can be paused and restarted. For example, after a break of up to 6 weeks when the agency worker returns to the same role then the weeks both before and after the break are counted as a ‘continuous period’. Each week counts as a qualifying week irrespective of whether they work for all or part of the week or if they have worked in the job through different agencies. The 12 week period continues if the Temp is absent due to pregnancy-related sickness or maternity, paternity and adoption leave but it is paused for holiday and sickness absences.
The 12 week qualifying period will commence on 1st October 2011 (previous work prior to 1st October 2011 will not count), which means that the first date that 12 week rights to equal treatment will take effect will be 24th December. Merry Christmas folks!
Agency workers believing they are not granted their rights under this legislation may make a claim to the Employment Tribunal (ET) who have the power to make an immediate award of compensation which will be to make up the difference with a minimum level of 2 weeks’ wages but, should the ET determine that assignments have been deliberately structured to avoid the AWR, an additional £5,000 penalty can be applied. Who is liable? It will be for the ET to decide but can be Agency or Hirer or both.
A more detailed fact sheet is being produced and will be available on the website soon – watch this space!