The Agency Workers Regulations (AWR) gives agency workers who, have been in a job for more than 12 weeks, the same employment and working conditions as they would have had if they had been directly recruited by the hirer.
Day one rights
Under the regulations there are also ‘day one rights’, which apply from the first day of the employment. These rights include access to onsite collective amenities (such as car parking and canteen), access to information about permanent job vacancies as well as the maternity rights of agency workers. Amenities such as subsidised gym membership and season ticket loans are out of scope as they are considered to be a reflection of the long-term relationship between an employee and a hirer which will not be appropriate for agency workers.
The aim of the legislation is for agency workers to be provided with equal treatment in the workplace.
Who does AWR apply to?
The AWR applies to workers who find work through an agency or via umbrella companies. Self-employed individuals and those who do not work under an agency’s supervision are not covered by the AWR.
When did AWR come into force?
1st of October 2011. They were published in 2010 and originate from the Agency Workers Directive.
What is equal treatment?
After working for 12 calendar weeks in the same role at the same company, you will be entitled to equal treatment, irrespective of the no. of agencies that supplied you or whether you are full or part-time. Any time worked during a week will be counted as ‘one week’– even if you have only worked a few hours in a week.
What happens if there is no permanent employee comparator?
In the absence of a comparator the agency and the hirer will consider various factors such as internal pay scales and national rates of pay for the job concerned. There may be other conditions which apply generally in the workplace which the agency worker might be entitled to.
What type of absence affects the 12-week qualifying period and how?
The qualifying period can be paused for particular circumstances. The table below details the effects of different types of absence.
| Type of absence affecting the 12 week qualifying period | Effect on the 12 week qualifying period |
|---|---|
| Any reason where break is less than 6 weeks | Pauses the clock |
| Sickness absence | Pauses the clock up to 28 weeks |
| Annual Leave | Pauses the clock |
| Shutdown i.e. company closure, school holidays | Pauses the clock |
| Jury service | Pauses the clock up to 28 weeks |
| Industrial action | Pauses the clock |
| Pregnancy and maternity-related absence | Clock keeps ticking* |
| Statutory maternity, paternity or adoption leave | Clock keeps ticking* |
| Agency worker begins a new assignment with a new hirer | Clock resets |
| Agency worker remains with the same hirer but is no longer in the same role | Clock resets |
| Break between assignments of 6 weeks or more (which is not one of “pauses the clock” or “clock keeps ticking”) | Clock resets |
*The protected period for a pregnant agency worker begins at the start of the pregnancy and ends 26 weeks after childbirth (or earlier if she returns to work). **Where an agency worker has a contract of employment with an agency and is entitled to this type of leave.
I only work 3 days a week, how will the 12-week qualifying period work?
The 12-week qualifying period is based upon calendar weeks irrespective of working patterns and the number of days worked each week. In this case, a 3-day week will contribute 1 week towards the 12-week qualifying period.
What type of absence affects the 12-week qualifying period and how?
What will I be entitled to after 12 weeks?
Please see below table that illustrates what is and isn’t included following the successful completion of a 12-week qualifying period:
| Pay Includes | Pay Excludes |
|---|---|
| Basic pay | Occupational Sick Pay |
| Local bonus schemes / commission structured based on quality or quantity of work done | Occupational pension schemes, occupational maternity, paternity or adoption pay |
| Overtime payment rates (providing qualifying criteria are met) | Notice pay (statutory and contractual linked to loss of employment) |
| Shift / unsocial hours allowances | Benefits in kind given as an incentive or reward for long service |
| Vouchers or stamps which have monetary value and are not salary sacrifice schemes, e.g. luncheon vouchers, child care vouchers | Payment for time off for Trade Union duties |
| Payment for annual leave (any entitlement above the statutory minimum of 5.6 weeks can be added to the hourly or daily rate) | Advances in pay or loans e.g. for season tickets |
| Holiday entitlement | Expenses such as accommodation and travel expenses |
| Rest breaks / periods | Bonuses which are not directly linked to the contribution of the individual |
| Paid time off for antenatal appointments | Any payments that require an eligibility period of employment/service, if not met by the agency worker |
Please note that this list is not exhaustive, but includes the key items.
The site operates a local bonus scheme, am I entitled to this?
Yes, under the regulations where there is a bonus scheme which relates to quality and / or quantity of work done then you are entitled to the same opportunity to achieve that bonus as a permanent employee in the same role.
From day one of my assignment as an agency worker, will I be entitled to apply for a permanent vacancy with hirer?
Unless it is a company re-organisation, you will be entitled to access information about the role.
What holiday will I be entitled to?
Upon completion of 12 calendar weeks within the same role with the same hirer, you will be entitled to the same amount of holiday entitlement as if you had been directly recruited by the hirer for the assignment. Further details on holiday entitlement will be made available within the agency worker’s contract with Premium Line Healthcare Solutions and any Assignment Details Forms associated with the particular assignment.
When will I see a difference in pay?
If there is an increase in pay it will be paid once you have worked in the same role with the same hirer for 12 calendar weeks.
Is the hirer pension plan included?
No. If applicable, will I be entitled to receive any incremental increases in annual leave which are awarded for length of service? Yes, after completion of the 12-week qualifying period and subject to the agency worker meeting the qualifying criteria for the increase in annual leave e.g. 1 year’s service.
Will I be entitled to the same incremental pay increases as a permanent worker?
Yes, after completion of the 12-week qualifying period and subject to the agency worker meeting the qualifying criteria for the pay increase e.g. 1 year’s service.
Am I entitled to occupational sick pay?
No, this is not included within the agency worker regulations. However, subject to the statutory qualifying criteria you may be entitled to statutory sick pay, which may be processed via Premium Line Healthcare Solutions.
If I am pregnant, how will AWR affect me?
Firstly, a pregnant worker will need to notify Premium Line Healthcare Solutions that she is pregnant in writing. Premium Line Healthcare Solutions will then notify the hirer, who will then conduct a workplace risk assessment and will endeavour to remove any risks should they be found in the work area. If an adjustment is not possible or not deemed reasonable, the hirer will then notify Premium Line Healthcare Solutions. Premium Line Healthcare Solutions will then endeavour to find suitable alternative work. Furthermore, after completing a 12-week qualifying period the agency worker will be allowed paid time off for antenatal medical appointments and antenatal classes during the assignment. Premium Line Healthcare Solutions may ask for evidence confirming such appointments.
Do the regulations impact paternity rights?
No, paternity rights were recently revised in the UK, under The Additional Paternity Leave Regulations 2010.
If the hirer supervisor moves me from one role to another, what should I do?
You will have an obligation to notify Premium Line Healthcare Solutions as soon as possible about the change in role. Furthermore, if you take up any other assignment during your time with Premium Line Healthcare Solutions with another agency, you will be required to keep us informed with these details. Failure to notify us of these changes may mean that previous weeks worked for the hirer are not counted towards the qualifying period and this will result in a delay in the agency worker receiving equal treatment. If my assignment ends with one hirer and I accept a new assignment with another hirer, will I still be eligible for equal treatment? No, as this is a new hirer, then the qualifying period will start again.
What should I do if I don’t think I am not receiving equal treatment?
If you have completed the 12-week qualifying period and believe you are not receiving equal treatment, contact Premium Line Healthcare Solutions immediately. You will need to make an informal enquiry with Premium Line Healthcare Solutions to investigate. If you don’t receive a satisfactory response, you are entitled to make a request for a written statement from the agency. This will provide you with information about the treatment you have received. The agency has 28 days to respond. If you do not receive a response, you can make a request directly to the setting. There is no independent body tasked with enforcing the AWR. Instead, you can pursue a claim in an Employment Tribunal in order to enforce your rights. Claims can be brought against the hiring company, the agency or both depending on the issue in question.
