The Agency Workers Regulations, which were implemented as part of a set of legislative changes known as the Agency Workers (Amendment) Regulations 2019 in April 2020, are commonly referred to as AWR. These regulations primarily pertain to agency workers and were introduced to guarantee that they receive the same rights, specifically equal pay and working conditions, as permanent employees after a certain qualifying period. This article aims to elucidate the implications of the Agency Worker Regulations and provide guidance on adhering to these rules.
Guidelines for Recruiters and Agencies Regarding AWR
The legislation related to Agency Workers Regulations defines an agency worker as an individual who:
- Is provided by a temporary work agency (TWA) to work temporarily under the supervision and direction of a hirer.
- Has a contract with the temporary work agency, which could be either a contract of employment with the agency or any other contract to perform work and services personally for the agency.
Anyone meeting this description is safeguarded by the AWR rules and is entitled to pay parity and equivalent working conditions after a period of 12 weeks.
Employment Rights for Agency Workers
This legal protection implies that agency workers have rights during two distinct timeframes. In the initial 12 weeks of an assignment, the worker is entitled to equitable access to facilities available to permanent staff, such as on-site childcare facilities or staff canteens. They also have the right to be informed about any permanent job openings with the hirer and the opportunity to apply for them, known as "day one rights."
After 12 weeks in the same role with the same end-hirer, the worker enters the qualifying period, entitling them to the same working conditions, such as breaks and annual leave entitlements, and equal pay as permanent employees. For detailed information on the Agency Workers (Amendment) Regulations 2019, please refer to the provided link.
Focus on Agency Amendments in 2019
Agencies supplying temporary workers must facilitate day one rights for their workers. This responsibility involves obtaining specific information from the end hirer for roles lasting more than 12 weeks. This information encompasses typical pay rates and working conditions for permanent employees in similar roles. Having this information ensures fair treatment of agency workers after the 12-week qualifying period.
Repeal of Regulations 10 & 11
Regulation 10 of the Agency Worker Regulations pertained to contractual pay arrangements between assignments, and Regulation 11 offered guidance on calculating this pay. Commonly referred to as Swedish derogation, this model previously stipulated that agency workers between assignments, the period between the end of one contract and the start of the next, were entitled to only four weeks of pay. Agencies could pay the worker's salary at 50% of their average wages over the previous 12 weeks, provided it equated to at least the National Minimum Wage.
However, these regulations were repealed by the 2020 amendments to the AWR rules, ensuring that agency workers are now entitled to pay parity after 12 weeks.
Mandatory Written Statement
When an agency worker believes their treatment does not align with the rights granted under the AWR, they can request a written statement from either the agency, end hirer, or both, detailing their treatment. The worker must initially request this statement from the agency, which has 28 days to respond. If the agency fails to respond, the worker can request the statement from the hirer 30 days after the initial request.
Failure to provide the statement constitutes grounds for the worker to file a complaint with an employment tribunal.
Unfair Dismissal and Protection from Detriment
Agency workers may bring a claim for unfair dismissal to an employment tribunal if they are dismissed for any of the following reasons:
- Providing evidence of a violation of the Agency Worker Regulations.
- Asserting that the agency has not upheld the Agency Worker Regulations.
- Asserting that the agency has denied them any rights granted by the regulations.
- Holding a suspicion, or having held one, that either the agency or end hirer intends to breach the AWRs.
In conclusion, while engaging temporary workers through agencies may introduce some complexity, the Agency Worker Regulations have simultaneously introduced increased protections for workers on longer-term assignments. With Borderless team's extensive experience of over 20 years and its authorisation as an FCA regulated company, the company possesses comprehensive knowledge of the agency landscape.