What are the Agency Workers Regulations ("AWRs")?
The AWRs are legislation designed to protect temporary agency workers. After they have reached the qualifying period of 12 weeks on the same job, they will be entitled to the same basic employment rights and working conditions as employees. They will get some rights (entitlement to access the hirer's facilities and to be provided with information on job vacancies) from the first day of an assignment.
When do the AWRs come into force?
1 October 2011. The AWRs are not retrospective, so if you have temporary agency workers working for you, their 12 weeks starts accruing on the 1 October, and you need to provide access to the facilities and information on vacancies from that date.
Who is affected by the AWRs?
The AWRs apply to temporary agency workers and to organisations/individuals involved (directly or indirectly) in the provision of temporary agency workers (temporary work agencies, or TWAs), and to the organisations that use them (hirers).
What is a temporary agency worker ("TAW")?
The key elements that make someone a TAW are:
1. A contract between the worker and a temporary work agency (TWA);
2. That the worker is supplied to an end user (the hirer) by the TWA; and
3. When on assignment the worker is supervised by and/or under the direction of the hirer; and
4. The worker is NOT in business on their own account e.g. they have no direct business relationship with the hirer. The hirer is not a client or a customer of the worker, but rather of the TWA.
This means that in most circumstances someone who is a consultant or hires themselves out through their own company is unlikely to be a TAW. But simply putting a worker's earnings through a limited company will not be enough to remove them from the scope of the Regulations; they have to genuinely be in business on their own account.
What new rights do the AWRs give temporary agency workers?
From the first day of an assignment, TAWs will have the same rights as a comparable employee to access collective facilities and amenities and to have access to information about vacancies. Collective facilities are things like canteens, workplace crèches, staff rooms, car parking, prayer rooms etc. Vacancies can be advertised in the normal way e.g. on notice boards or intra or internet, but TAWs must be told how they can access them.
There is no requirement to treat TAWs better than employees – for example, if there is a waiting list for the crèche then a TAW would have a right to join the waiting list along with everyone else, not a right to immediately be given a crèche place. If you have a really good reason, you may be able to justify not allowing TAWs access to facilities, but it is only in very rare circumstances that any reasons would be good enough. For example, Tribunals are unlikely to consider cost alone to be a good enough reason.
After the qualifying period of 12 weeks in the same job, the TAW is entitled to the same basic terms and conditions of employment as if they had been employed by the hirer directly. These are; key elements of pay, annual leave, rest periods and breaks, limits on working time (e.g. 48 hours a week), and paid time off for ante natal appointments for pregnant TAWs. If there is a qualifying period for the entitlement (e.g. you need to have been employed for 6 months before you get allocated a parking space) then the qualifying period applies to the TAW, just as it would to an employee.
How do we calculate the 12 week qualifying period?
This can be rather complicated. There are anti-avoidance provisions to stop hirers or agencies simply moving TAWs between jobs to prevent them reaching the qualifying period. We discuss calculating the qualifying period and anti- avoidance provisions in our podcast
What do we do now?
Take a look at the helpful government guidance here http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance.pdf
You need to check whether those who work with you/for you are covered by the AWRs and how you will be affected by the new legislation.
If the AWRs are going to affect you, check how and where you use TAWs and whether you will have any employed on the key date of 1 October 2011. You can then make sure that you can meet the requirements of the AWRs.
You may need to update your systems and paperwork to reflect the new requirements – for example, you will need to know how long TAWs have been with you, the length of any absences and the reason for absences to know when they reach the 12 week qualifying period.
You should also consider reviewing any contracts you have with your agency providers and seeing whether you want to make changes – for example, asking for an indemnity to cover your business if you run into trouble with the AWRs.
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