Important Information about AWR

The AWR came into effect on 1st October 2011 in England, Scotland and Wales. In Northern Ireland they came into effect on 5th December 2011.

The Regulations are designed to provide temporary agency workers with equal treatment akin to permanent employees with regards to pay and working conditions once they have completed 12 weeks in the same role with a hiring Client.

However, the 12 week qualifying period is not retrospective so for those temporary workers currently engaged on an assignment with a Client when the Regulations came into force those temporary workers will only start to accrue towards equal treatment from 1st October 2011.

The legislation applies to temporary agency workers on a temporary contract working through an employment business at a hiring Client’s site.

The legislation impacts PAYE Temporary Workers, those contractors working through umbrella companies and those working through personal service companies that are not considered to be genuinely in business on their own account.

• Contractors who are providing their services via a personal service company (Limited Company) and who are considered genuinely self employed
• Permanent employees and Candidates who are seeking permanent employment direct with Hiring Clients

Equal treatment will apply to the basic working and employment conditions of the agency worker.

This includes basic pay, plus other contractual entitlements directly linked to the work undertaken by the agency worker whilst on assignment i.e.

• Payment for overtime (subject to any requirements regarding the number of qualifying hours)
• Shift allowances
• Unsocial hour premiums
• Basic pay
• Payment for annual leave
• Bonuses or commission payments that are directly linked to the quality or quantity of work done by an agency worker.
• Vouchers or stamps with a monetary value e.g. luncheon or transport vouchers. Childcare vouchers are included unless they are funded on a salary sacrifice basis

Aspects of pay that are provided to employees in recognition of the long term relationship between the employer and the employee such as:

• Profit sharing schemes
• Occupational pension contributions
• Occupational sick pay
• Redundancy pay
• Occupational maternity, paternity or adoption pay
• Payment for time off for trade union duties
• Notice pay
• Advances in pay or loans
• Expenses
• The majority of benefits in kind
• Any payments that require an eligibility period of employment/service, if not met by the agency worker

It is 12 calendar weeks regardless of working pattern (full time or part time). A new qualifying period will begin under the following circumstances:

• A new assignment with a new employer commences
• A new assignment with the same employer is substantively different
• There is a break of more than 6 weeks between assignments in the same role.

The qualifying clock will pause under the following circumstances:

• Any reason where there is a break in the assignment for less than 6 weeks
• Sickness absence pauses the clock for up to 28 weeks
• Annual leave
• Shut downs (e.g. school holidays)
• Jury service pauses the clock for up to 28 weeks
• Industrial action

The qualifying clock “keeps ticking” during a period of pregnancy and maternity related absence.

In the event the temporary worker has already completed work with the Client through another agency, the time worked may count towards the 12 week qualifying period. The Candidate is responsible for advising ASA Recruitment if this is the case.

Upon completion of 12 calendar weeks within the same role with the same hiring Client, you will be entitled to the same amount of paid holiday as if you had been directly recruited by the hiring Client for the assignment. You are already entitled to the statutory minimum paid holiday of 5.6 weeks per year (which will be calculated pro rata depending on the proportion of the holiday you work). Under AWR you will also be entitled to any contractual paid holiday over and above the statutory minimum which you would be entitled to if the hiring Client was to engage you directly.

Under the working Time Regulations statutory, paid holiday cannot be rolled up into a single pay rate but must be paid separately in addition to your pay rate.

You may not because you may already be receiving a rate that is AWR compliant.

As a business ASA Recruitment aims to pay AWR compliant rates from the start of every assignment. However this may not be practical in all cases. If the hiring Client is not willing to pay an AWR compliant rate from the outset your rate will need to increase at the point you complete the 12 week qualifying period in the same role with the same hiring Client.

Some aspects of equal treatment apply before the 12 week qualifying period i.e. from day 1 of the worker’s assignment. The regulations give agency workers the same access to certain facilities and information provided by the hiring Client.

These include:

• Access to information on job vacancies with the hiring Client (i.e. vacancy lists) except where the hiring Client is re-structuring their business as part of an internal re-organisation.
• Access to collective facilities and amenities (i.e. canteen, childcare, transport).

National rates of pay for that role may be useful guidelines. The rate of pay will remain the same during and after the qualifying period of 12 weeks.

Yes. But only if an agency worker requests this information after the 12 week qualifying period has elapsed. The agency (and the hiring Client) will have 28 days to respond to the worker’s request from the date it is received.