October will soon be upon us and the Agency Worker Regulations (AWR) will be in force.
The purpose of the Directive is to provide temporary agency workers with equal treatment in terms of basic working and employment conditions as if they had been employed directly to do the same job. The implementation of the Directive will have major implications on the costs and use of agency workers for many companies.
In essence, at the outset of an assignment expected to last 12 weeks or more, the hiring company will need to identify what an equivalent permanent employee would be paid. This information is then given to the agency, which will then set the level of the worker’s pay. There are further details about this below but the regulations are clear that the agency worker does not become an employee after the 12 weeks:
- Equal treatment for agency workers after they have been in an assignment with the same hiring company for a qualifying period of 12 weeks. This includes pay, working hours, overtime, breaks, shifts or unsocial hours allowances, rest periods and holidays.
- From day one, agency workers are entitled to the same access to job vacancies as permanent members of staff and collective facilities such as staff canteens, childcare facilities and transport services.
- The hirer or agency should take account of the agency worker’s qualifications, skills and experience, as well as the terms and conditions of comparable employees to ascertain the correct level of pay.
- Tribunals can make an additional award of £5,000 for anyone attempting to circumvent the Regulations.
- If an agency worker’s role changes substantially during the term of the assignment, then they may not attract the equal treatment provisions.
- The hirer will be liable if they don’t give the agency worker the ‘day one’ rights, such as the use of collective facilities, but both the hirer and agency could be held liable for breaches of pay and conditions rights after 12 weeks
- If a worker does not receive equal treatment, the agency will be liable unless the information provided by the hiring company was not correct. If the new Regulations are ignored by an employer, the agency worker will be able to claim less favourable treatment and /or detrimental treatment with a potential unlimited compensation order.
- The Regulations do not make agency workers into employees but their aim is to protect low-paid workers from exploitation. However, many employers using agency workers are liable to experience an increase in costs caused by equal treatment requirements (particularly pay).
