Agency Workers Regulations 2010 come into effect in England, Scotland and Wales on 1st October 2011 and in Northern Ireland on 1st December 2011.
As a hirer of temporary agency workers (temporary workers) please ensure you:
2. What are the Agency Workers Regulations?
The regulations stem from the EU Temporary Workers Directive 2008. This gives temporary workers the right to the same pay and working conditions enjoyed by your own comparable workers/employees. The regulations do not alter the agency temporaries employment status, i.e. rights granted under these regulations do not grant them employment status in law.
3. Who is an agency worker and what is an agency under the regulations?
Temporary agency worker
4. What do the regulations do?
The regulations grant two types of rights to temporary workers:
From day one in an assignment, temporary workers are entitled to the:
Liability for non-compliance rests with you.
After working for the same client hirer (you) in the same role for 12 weeks a temporary worker becomes entitled to the:
It's as if you had directly employed them into that role at start of the 12-week period (12 weeks explained later in article).
Primary liability for non-compliance rests with the agency. Liability switches to you if you give the agency incorrect information on which they rely to comply with the above.
5. What is ‘pay’ under the regulations?
* Temporary workers are already given statutory paid holiday. This is paid in addition to the hourly/daily rate as rolling it up in the rate is unlawful. The definition of pay under the AWR includes holiday pay but in reality this will be limited to any additional contractual paid holiday over and above the statutory minimum already given.
Pay does not include (therefore temporary worker not entitled):
6. What is meant by ‘working conditions'?
This refers to any working time entitlements – working hours, rest breaks, paid holiday.
7. When has a temporary agency worker worked for 12 weeks?
When they have performed work in each of 12 consecutive calendar weeks subject to the following types of absence which will pause the clock, but not break continuity:
Continuity will be broken (and the 12-week qualifying period reset) by:
8. Maternity rights
Pregnant 'temps' will be entitled to paid time off for ante-natal care after 12 weeks and other pregnancy related entitlements.
The regulations include anti-avoidance provisions to prevent a hirer from structuring assignments to prevent a temporary from acquiring 12-week rights. A penalty of £5,000 is payable if the temporary succeeds before a tribunal.
10. Individual performance related bonus payments
A bonus you would pay the temporary worker if you directly employed them and which is directly attributable to their individual performance falls within the definition of 'pay'.
Where this applies the temporary worker does not have to receive exactly the same bonus as your comparable direct employee but should have the same opportunity to achieve it and be assessed using the same criteria. By contrast, bonuses or any part of them directly linked to an individual's length of service/the company’s performance will not count.
11. The Ascendant Recruitment approach
Ascendant Recruitment deals mainly at a level where temporary workers supplied are paid at least at market rates. Therefore, we do not anticipate making significant adjustments generally and aim to ensure the temporaries are compliant from day one.
We do not think it appropriate in the case of valued, high level temporaries especially, to pay them less in the first 12 weeks of an assignment than they would be paid had you directly engaged them at the start of it.
We will complete a questionnaire with you ahead of each assignment to determine what the temporaries pay would be if you were to directly engage them. This would include determining the relevant:
The information you give can be based on a comparable employee or a pay grade but must be accurate, as it will be relied on to ensure the worker is receiving the correct package. Where there is no comparable employee/pay grading equal treatment will be deemed.
Individual limited company contractors set up as genuinely in business on their own account for tax purposes will be treated by us as outside the scope of the regulations.
There are derogations from the regulations such as the managed service company exemption and the Swedish derogation but we do not consider these generally viable for our business.