The Agency Workers Regulations (AWR) becomes effective in the UK from October 1st 2011.
The AWR is designed to give temporary agency workers equality in pay, treatment and employment conditions as they would have been entitled to had they been recruited by the hirer directly for the same post.
Under the Directive 'equal treatment' relates only to basic working and employment conditions for temporary agency workers.
These include from the first day of the assignment.
- Access to employees’ facilities such as canteen, car park or crèche (unless there is an objective reason for not offering such facilities).
- Equal access to apply for internal positions advertised by the hirer.
After 12 weeks of continuous work (It does not matter if they work for all or part of the week for it to count as a qualifying week, nor if they have worked in the job through different agencies).
- Equal basic rates of pay
- Overtime and/or shift premiums
- Bonuses related to the quality or quantity of work
- “Luncheon“ vouchers with monetary value
- Hours of work, rest and breaks
- Any holiday entitlement above the statutory minimum
The Directive does not affect the employment status of temporary workers who will still not have the rights to claim unfair dismissal, redundancy pay or maternity leave. Nor will agency workers be entitled to the same benefits such as occupational sick pay, company pension schemes, financial participation schemes and bonus payments based upon organisational or company performance. These are considered a reflection of the long term relationship between an employee and an employer. Temporary agency workers will therefore remain a flexible labour resource for hirers.
If there is no work for 6 weeks between assignments then the temporary agency worker begins the qualification period again. However it only pauses for holiday and sickness absences and continues as normal for pregnancy-related sickness or maternity, paternity and adoption leave.
There are temporary type workers who are not included in the AWR remit. These include workers who are genuinely self-employed and working through their own account, or who are engaged by companies providing a genuinely out-sourced service and temporary contracted workers directly engaged by the hirer.
Temporary agency workers will have the right to request how their work conditions and pay have been determined from the Agency and also the hirer. Then if the worker believes they have not received equality in pay, treatment or employment conditions, they may make a claim though the Employment Tribunal system, usually within 3 months of the assignment.
The claim may be against the agency, the hirer or any other party in the labour supply chain, such as an Umbrella Company, who might be responsible for the disadvantage. In practice, it is likely to be all the parties involved.
Should the claimant be successful, the immediate award will be to make up the difference (as with National Minimum Wage claims) with a minimum of 2 weeks’ wages but, should the Employment Tribunal decide that assignments have been deliberately structured to avoid the AWR, an additional £5,000 penalty can be applied.
Labour users are advised to liaise and work closely with their labour providers to ensure conditions for agency staff are equal to those of direct employees. Care should also be taken that any special provisions being made in contracts for agency workers comply not only with the new legislation but also do not fall foul of other non-discrimination clauses in Code of Conduct that may apply such as the ETI Base Code.
The Regulations in full can be found at http://www.bis.gov.uk/
Email SGS Hong Kong Ltd. at mktg.hk@sgs.com for enquiries or visit www.hk.sgs.com.
