A TUC guide to the Agency Workers Regulations 2010
This information is intended to be a brief introduction to equal treatment rights for agency workers. The information is for guidance only and should not be regarded as an authoritative statement of the law. It is always a good idea to seek advice from your union (or from an advice agency if not a union member) on your specific situation before taking any action.
This guidance does not apply to agency workers in Northern Ireland.
- New equal treatment rights - summary
- Day one rights
- Equal treatment rights after completing the 12 week qualifying period
- Establishing equal treatment
- Anti-avoidance measures
- Rights for pregnant agency workers and new mothers
- Enforcing your rights
New equal treatment rights - summary
Since 1 October 2011, agency workers have gained new equal treatment rights as a result of the Agency Workers Regulations 2010 (AWR).
From day one of an assignment agency workers have a right to:
- Equal access to collective facilities provided by the hirer
- Information and the opportunity to apply for vacancies in the hirer's workplace
After 12 weeks in the same role with the same hirer agency workers have the right to:
- equal treatment on pay, holidays and working time
- improved pregnancy rights
Who has the right to equal treatment?
You will be covered by the new equal treatment rights if:
- you are placed by an agency on temporary assignments where you work under the direction and supervision of a hirer and,
- you are an employee or worker of the agency (i.e. you have a contract of employment or a contract to perform work or services personally with the agency).
You are not covered by equal treatment rights if
- you use an agency to find permanent work with a hirer.
- you are genuinely self-employed and run your own business
For more information on whether you are likely to be an employee, a worker or self-employed, please see the Employment Status section of the Basic Rights @Work website.
Day one rights
Equal Treatment on collective facilities and amenities
Since 1 October 2011, agency workers have the right not to be treated less favourably than a comparable employee in relation to the collective facilities and amenities provided by the hirer including; canteens and staff rooms, toilet / shower facilities, crèches, and transport services (such as local pick-ups and drop offs).
If a popular facility such as a workplace crèche has a waiting list, you have the right to request to use this facility and join the waiting list on the same basis as the hirer's employees.
You can compare your treatment withan employee or worker of the hirerwho doesthe same or broadly similar work and works or is based at the same establishment as you (or at a different establishment owned by the hirer if there are no comparable workers at your site).
There are likely to be limited circumstances where hirers can justify not providing equal treatment on collective facilities. The cost of providing a facility to an agency worker is unlikely by itself to be sufficient reason.
Vacancies with the hirer
Since 1 October 2011, agency workers have the right to be informed about vacancies with the hirer while on assignment with them. The aim is to give you the same opportunity as a comparable worker to find a permanent job with the hirer.
The hirer can choose how to inform staff about the vacancies but you should have the same access to this source of information and opportunity to apply as the hirer's employees.
Equal treatment rights after completing the 12 week qualifying period
Equal treatment on pay
After 12 weeks in the same role with the same hirer, you will have the right to the same pay, as if you had been directly recruited by the hirer to do the same job.
Pay includes: hourly pay; salaries; piece rates; holiday pay; overtime pay; shift, unsocial hours and risk rates; bonuses and performance related pay connected to an individual's workandvouchers or stamps, such as luncheon vouchers or childcare vouchers, that have a monetary value and can be exchanged for goods or services.
Pay does not include: pensions; sick pay; redundancy pay; maternity, paternity or adoption pay; bonuses linked to company performance or which reward loyalty or length of service; expenses or payments linked to financial participation schemes such as share ownership schemes.
The Regulations do not affect your existing entitlements to statutory sick pay; statutory maternity, paternity or adoption pay. Agency workers will also have pension entitlements under the new automatic pension enrolment. The Department for Work and Pensions (DWP) and National Employment Savings Trust (NEST) have prepared a useful handout explaining the new pension arrangements: http://www.dwp.gov.uk/docs/auto-enrol-and-wpr-the-facts.pdf. If you are unsure, seek advice from your union or from an advice agency.
Agency workers on pay between assignment contracts
The Agency Workers Regulations provide an exemption from the right to equal pay. If you are an employee of an agency and have a right to be paid between assignments where the agency is unable to find work for you, you will not be entitled to equal pay, even where you have worked for more than 12 weeks in the same role for the same hirer.
In order for this exemption to apply:
- You must have a contract of employment with the agency; and
- You must not be employed on a fixed term contract; and
- Your contract must include terms on the following: the minimum pay rates you will receive; where you will be expected to work; your expected hours of work during any assignment; the maximum hours you will be expected to work on an assignment; the minimum hours the agency will guarantee you while on assignment (which must be at least one hour); and the type of work you will be expected to undertake; and
- You must be paid by the agency between assignments at least 50% of the pay you received on your last assignment or the national minimum wage rate for the hours you worked on the last assignment, if this is greater.
The agency must also try to find and offer suitable assignments to you when you are between assignments and not working. Your agency cannot terminate your contract until there has been a total of at least four calendar weeks between assignments when you were not working but were paid by the agency.
This exemption from equal treatment only applies to pay. You are entitled to all other equal treatment rights.
Holidays rights for agency workers
After 12 weeks in the same job for the same hirer, you will have the right to the same holiday entitlement as if you had been directly recruited by the hirer to do the job. This includes equal treatment on annual leave and holiday pay including entitlements above the statutory minimum and equal treatment on bank holidays including rights to time off and enhanced pay rates. For example, if comparable directly employed staff are entitled to 35 days holiday per year, your entitlement should be the same. If your assignment is for a shorter period such as six months your entitlement will be worked out on a pro-rata basis and you would be entitled to 17.5 days leave in this example.
Requesting and taking holiday: After qualifying for equal treatment you should be treated the same as the hirer's employees when requesting and being permitted to take holidays. For example, where a hirer requires their employees to give notice before being able to take leave, you can be required to give the same period of notice and where the hirer's employees are allowed to take holidays during peak times such as the summer season, you should be allowed to take holiday during this time as well.
Equal treatment on working time entitlements
After 12 weeks in the same job for the same hirer, you will have the right to the same working time entitlements as if you had been recruited directly by the hirer to do the same job. This includes equal treatment on: the length of working time; rest breaks and rest periods; night work including enhanced pay rates; pay during travel time during working hours; on call pay and standby payments.
Establishing equal treatment
Agency workers qualify for equal treatment on pay, holidays and working time after 12 weeks in the same role for the same hirer. After the 12 week qualifying period, you will have the right to pay, holiday and working time entitlements as if you had been directly recruited by the hirer to do the same job.
The key question is 'what pay, holidays and working time entitlements would I have been entitled to if I had been directly recruited by the hirer to do the same job?'
You will only have the right to equal treatment on pay and conditions ordinarily contained in the contracts of the hirers' employees or workers.
In most workplaces it will be easy to assess whether you are receiving equal treatment by comparing your pay and conditions with collective agreements, staff handbooks, pay scales or standard contracts of the hirers' employees or workers. But where a hirer employs staff on genuinely individualised pay rates, you may not be covered by equal treatment rights.
A hirer or agency may be able to defend a claim for unequal treatment if they can identify a comparable employee on the same pay and conditions as you. The comparator must be a current employee of the hirer and must do the same or similar work as you. They should also work in the same workplace as you, or in another workplace owned by the hirer if there are no comparable employees in your workplace.
Calculating the 12 week qualifying period
You will qualify for equal treatment on pay, holidays and working time entitlements after working for 12 calendar weeks in the same role for the same hirer on one or more assignments.
Every week in which you do any work for a hirer will count as a calendar week, even if you only work a few hours or a couple of days. A calendar week is likely to comprise of a period of 7 days, starting with the first day of your assignment.
It does not matter if you are supplied by more than one agency during your qualifying period and you can accrue qualifying periods with more than one hirer at the same time.
The 12 week qualifying period will be broken and reset to zero where:
- You start a substantively different role with the hirer and are informed in writing about the new role by your agency, or
- You have a break of more than 6 weeks from working for the hirer (unless the break is for a permitted reason that does not break continuity).
What is a substantively different role?
A role will be 'substantively different' where there is a genuine and significant difference to the role, involving different job functions or tasks; requiring use of different skills and / or a significantly different pay rate. It is not enough that your line manager has changed or you are working in a different department but doing essentially the same job for the same hirer.
Your agency must write to you informing you of the type of work you will be required to do in the new role.
Permitted breaks during or between assignments
If you have a break of more than 6 calendar weeks during or between assignments with the same hirer you will normally have to start a new 12-week qualifying period unless the reason for the break is a permitted one under the Regulations. It may help to think of the qualifying period as a 'stopwatch'; certain breaks during or between assignments will cause the stopwatch to 'pause'. It will then continue to tick if you return to the same role with the hirer.
Breaks which pause the stopwatch for the duration of the break include: any break of 6 calendar weeks or less; sickness absence; annual leave;jury service ; customary factory shut downs or summer vacationsand strikesor industrial action in the hirer's workplace.
Continuity is not broken and the stopwatch continues to 'tick' during: any period of sick leave for pregnancy-related reason;any leave for maternity related reasons for up to 26 weeks after childbirth andany period of contractual or statutory maternity, paternity or adoption leave.
The Agency Workers Regulations include provisions to discourage hirers and agencies from hiring you on a succession of assignments or from moving you around in order to prevent you from qualifying for equal treatment rights.
You will gain equal treatment rights where:
- you have been moved to more than two substantively different roles with the hirer (or within a company associated with the hirer) or you have been hired on a succession of more than 2 assignments with a hirer and
- the most likely reason for this was because the agency or hirer (or associated company) intended to prevent you from qualifying for equal treatment and
- you would have qualified for equal treatment if you had not been moved or hired on a succession of assignments.
Where an Employment Tribunal decides that a hirer or agency has breached these anti-avoidance provisions, they can award you up to £5,000.
Rights for pregnant agency workers and new mothers
The Agency Worker Regulations extend two existing rights for pregnant employees to agency workers once they have completed the 12 week qualifying period. These are:
The right to reasonable paid time off to attend ante-natal appointments when on assignments.
The right to be offered an alternative assignment for pregnancy related reasons or to be suspended on full pay where a suitable alternative assignment is not available.
(These rights apply from day one to agency workers who are employees of an agency.)
For more information on these rights please go to http://www.direct.gov.uk/en/Employment/
Enforcing your rights
If you are not receiving your rights to equal treatment you may be able to take a claim to an Employment Tribunal. You should always seek advice from your union or the ACAS Helpline before making a claim to an Employment Tribunal.
As with most statutory rights there is a 3 month time limit for claims to an Employment Tribunal.
Where an Employment Tribunal finds that your rights under the Agency Worker Regulations have not been complied with they will make a declaration and award a minimum of two weeks' pay. Where you can show that the anti-avoidance measures have been breached the Tribunal will be able to award up to £5000 compensation in addition to any other compensation awarded.
Issued: 25 April, 2012