Guide to AWR

Agency Worker Regulations (AWR) 2010. Don’t sit on your AWR wondering what the rules are, check out our guide

Dec 15, 2020
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The Agency Worker Regulations seem to have been around forever but sometimes go under the radar since they were put into action in 2011.

In April 2020 there was an amendment on certain sections, referenced as The Agency Workers (Amendment) Regulations 2019.

The original rules were to benefit workers engaging assignments through an agency, to ensure that after a qualifying period, agency workers were entitled to the same pay and working conditions as permanent employees or ‘comparators’ they were working alongside.

Defining an Agency Worker

An agency worker, as defined by AWR legislation, is someone who “is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and

  • (b) has a contract with the temporary work agency which is—
  • (i) a contract of employment with the agency, or
  • (ii) any other contract to perform work and services personally for the agency.”

An agency worker’s rights are broken down into two time-specific sections:

Day one rights for all agency workers: end hirers must ensure that workers can access ‘staff’ facilities (such as canteen, childcare facilities, etc.) and information on job vacancies from the first day of their assignment. It should be noted that these initial rights are the absolute liability of the hirer.

After 12 weeks in the same job/same end - hirer: This relate to pay and other basic working conditions (annual leave, rest breaks etc.) and comes into effect after an agency worker completes a 12-week qualifying period in the same job with the same hirer.

Workers outside the scope

  • Genuinely Self-Employed (in business on their own account) e.g. sole traders.
  • Limited company Contractors who are outside of IR35.

Workers within the scope

  • Those engaged via Umbrella PAYE and direct PAYE options.

If you are a hirer of agency workers: If you are an employer and hire contingent workers through a temporary work agency, you should provide your agency with up to date information on your terms and conditions so that they can ensure that an agency worker receives the correct equal treatment, as if they had been recruited directly, after 12 weeks in the same job. You are responsible for ensuring that all agency workers can access your facilities and are able to view information on your job vacancies from the first day of their assignment with you.

If you are a temporary work agency: If you are involved in the supply of temporary agency workers (including Umbrella payment companies), you need to ask the hirer for information about pay and basic working conditions (when it is clear that the agency worker will be in the same job with the same hirer for more than 12 weeks) so that they are treated as if they had been directly recruited to the job.

If you are a ‘temp’ agency worker: After you have worked in the same job for 12 weeks, you will qualify for equal treatment in respect of pay and basic working conditions. You can accumulate these weeks even if you only work a few hours a week. Your temporary work agency and/or Umbrella provider is likely to ask for details of your work history to help establish when you are entitled to equal treatment (separate guidance is available for agency workers on direct.gov website).

2019 Agency Workers Regulation Amendments

These amendments relate to the closure of regulations 10 & 11 (removing the Swedish Derogation model) to provide additional protection for agency workers.

Repeal of Regulations 10 & 11

This has important consequences for the Swedish Derogation model which many agencies and umbrella companies use, especially industries with a reliance on low-paid/unskilled workers. The Swedish Derogation model means that an agency worker will receive pay between their assignments normally at NMW levels, but they will also waive their rights to equal pay after 12 weeks.

The Swedish Derogation model has been questioned over recent years as to whether it is morally right and used as a possible exploitation of the labour market.

Find the full AWR legislative updates for 2019 here, and for the 2010 Agency Workers Regulations – click here

Resources:

Potential Liability of the Temporary Work Agency and Hirer

The temporary work agency will initially be liable for a breach in the provision of equal treatment. However, the regulations and UK Government guidance are clear that all parties in the supply chain, including the hirer and all TWA’s (including Umbrella companies) will be liable for a breach ‘to the extent that they are deemed responsible for that breach’.

It is possible that the temporary work agency will not be liable for a breach where it can show that:

  • It acted reasonably in obtaining or trying to obtain the required information from the hirer, or the temporary work agency in the next tier up the supply chain; and
  • It acted reasonably on information received from the hirer, or other temporary work agency e.g. recruiter to umbrella company to determine equal treatment; and,
  • Based on the information received, it extended the same basic working and employment conditions to the agency worker

The Regulations make it clear that where more than one temporary work agency is party to a claim the employment tribunal will have regard to the extent to which each temporary work agency will be responsible for the breach.

In certain cases, the hirer may be liable, particularly if they have refused to provide accurate comparator information down the chain.

The hirer and all TWA’s should not assume that responsibility for providing equal treatment will fall to the TWA at the bottom of the supply chain that actually pays the agency worker e.g. an umbrella intermediary.

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