AWR Legislation Clients

Introduction to AWR

As from 1st October 2011 the AWR  – Agency Workers Regulations came into force. This is to do with new rights for Temporary Workers but both agencies and clients (we will refer to clients as hirers) have obligations under this legislation.

From the first day of any assignment it is the responsibility of the hirer to give all Temporary Workers information about the company facilities that they will be entitled to use as if they were a permanent member of staff.  They should therefore have free access to the following if applicable i.e. if the company has them in place for their own staff:

  1. Staff canteen
  2. Crèche
  3. Transport pick-up and drop off
  4. Common rest rooms
  5. Access to and information on all current relevant vacancies
  6. Food and Drinks machine
  7. Car Parking
  8. There could be other facilities not mentioned here.

This does not give a Temporary Worker preference over other staff on waiting lists. It also does not apply to off-site facilities which are not provided by the hirer.

After 12 Weeks

Once a Temporary Worker completes 12 uninterrupted weeks of work in the same booking, whether or not they have changed agencies mid booking, they will qualify for equal rights as a permanent member of staff.  In order to qualify for these rights a Temporary Worker has to work for the same company, or group of companies, in the same or a similar role for a full 12 weeks.

Same or similar role means that a Temporary can move within a group (i.e. to another site or department of the same group) doing the same or an equivalent role during the 12 week qualifying period. The Temporary Worker is then entitled to the same rights as if they were a permanent worker.  These rights include:

  1. Equivalent rates of pay, overtime etc.
  2. Equivalent hours
  3. Rest periods
  4. Annual leave
  5. Parking and transport facilities
  6. Membership of leisure clubs
  7. Paid time off for ante-natal appointments
  8. Commission
  9. Performance related bonuses

There may be other basic rights not mentioned here.

In order to define equal basic rights the company must have a comparable worker in the company or group i.e. someone in the same capacity, or doing the same role as the Temporary Worker, who is engaged by the company on a permanent basis.

If there is no comparable worker the Temporary Worker should be given the same pay and conditions as if this person were engaged by the hirer on a permanent basis.

Qualifying

If a Temporary Worker works for a company (hirer) in the same role (regardless of whether or not this Temporary works for more than one agency e.g. 3 weeks with Agency A followed on by 9 weeks with Agency B) for a period of 12 calendar weeks, they will be automatically entitled to the equal rights of pay and benefits as a comparable worker or permanent employee with that company.

The 12 week period will be set to zero and become invalid if at any time during those 12 weeks:

  • The assignment comes to an end
  • There is a break in employment of 6 weeks or more
  • The Temporary Worker’s job/role substantively changes to another role within the company

The 12 week period will pause and then continue to accrue if the following occurs:

  • There is a break of less than 6 weeks
  • There is up to 28 weeks of sickness or invalidity
  • Annual leave occurs
  • Up to 28 weeks of Jury Service
  • Company closure beyond the control of the worker
  • A strike or lock-out

When the Temporary resumes work after any of the above occurs the 12 weeks continue to accrue from where they left off.

Exclusions

After 12 weeks Temporary Workers will be entitled to equal pay and rights.  However that does not include the following:

  1. Occupational sick pay
  2. Occupational pension
  3. Occupational maternity pay
  4. Redundancy pay
  5. Notice pay
  6. Guaranteed payments if laid off
  7. Accommodation or travel expenses
  8. Company share schemes
  9. Benefit in kind
  10. Payments requiring unmet eligibility
  11. Unrelated bonuses
  12. Longevity bonuses

There may be a situation whereby a Temporary Worker finishes one assignment within a 12 week period and is offered an identical role within the company.  In such a case the 12 week period will continue uninterrupted. However, if the new role is substantially different the 12 week period will end and a new 12 week period will commence.

The following comprises examples of substantive differences:

  1. The role must have a different title
  2. The role must have a different job specification
  3. The role must have a different purpose and involve different aspects of the business
  4. The role must report to a different manager
  5. The role must be in a different department

Pregnancy

Qualifying Temporary Workers are entitled to paid time off to attend ante-natal appointments and ante-natal classes which they cannot attend outside normal working hours. However, every endeavour must be made to arrange these appointments outside normal working hours.

Responsibility of the Pregnant Worker

In order to qualify for paid time off (if necessary) for ante-natal classes etc, the Temporary Worker will need to first notify the agency and the hirer of her pregnancy, in writing. In this written statement the Temporary Worker must inform the agency of any ante-natal appointments so that they can continue to be paid at the usual hourly rate.

Responsibility of the Hirer

On learning of the pregnancy the hirer must carry out a health and safety risk assessment on the assignment. If a risk is identified the hirer is obliged, where possible to make adjustments to remove the risk. If an adjustment is not possible the hirer must inform the agency.

Responsibility of the Agency

If the nature of the assignment is such that a risk to health and safety is likely, the agency will need to ask the hirer to perform a workplace assessment and make a reasonable adjustment if necessary. If this is not possible, the agency will need to seek alternative suitable work with another hirer, paid at least at the same rate and ensure that the temporary worker is paid for any period of the assignment where she could not work due to a health and safety risk. If the agency has to offer suitable alternative work, the Temporary Worker will not be eligible for continued pay if she refuses the alternative work offered.

Click here for AWR details on the government website

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