Agency Workers Regulations 2010

1. Agency Workers Regulations 2010 in force since October 1st 2011 Summary

2. Who do the Agency Workers Regulations apply to? • Individuals who work as temporary agency workers; • Businesses who take in Agency workers (Hirers)

3. Main points / scope • Equal treatment relates to basic working and employment conditions "as if" the worker had been recruited as an employee by the hirer directly • The full scope of equal treatment starts after a 12 week qualifying period working in the same job with the same hirer

4. New entitlements for agency workers from 1st October 2011 After 12 weeks in the same job: • equal treatment entitlements relate to pay and other basic working conditions (annual leave, rest breaks etc)

5. Definition of what “pay” includes • Basic pay based on the annual salary (usually converted into hourly or daily rate, with any pay increments); • Overtime payments, subject to any requirements regarding the number of qualifying hours equal to permanent employees’; • Shift / unsocial hours allowances, risk payments for hazardous duties equal to employees’; • Payment for annual leave; • Bonus or commission payments directly linked to the amount or quality of the work done. Includes non-contractual payments paid with such regularity that they are a custom and practice; • Vouchers or stamps with monetary value (not “salary sacrifice schemes”) such as luncheon or child care vouchers.

6. “pay” excludes • Occupational pay: sick, pension, maternity, paternity or adoption pay; • Redundancy and notice pay; • Payment for time off for Trade Union duties; • Advances in pay or loans e.g. for season tickets, expenses; • Payments or rewards linked to financial participation schemes (share ownership, phantom share schemes); • The majority of benefits in kind given as an incentive or reward for long-service; • Bonuses not directly linked to the contribution – e.g. a flat rate bonus to encourage loyalty or long term service; • Additional discretionary, non-contractual bonuses, as long as they are not made with such regularity to make them custom and practice.

7. 12 week qualifying period • Equal treatment entitlement (Day 1 already included) starts after the temporary completed 12 weeks in the same role with the same hirer • A calendar week is any period of seven days starting with the first day of an assignment, accrued regardless of hours. • A hirer can decide not to engage agency workers beyond 12 week; there is nothing in the Regulations to prevent this. • If a start – stop pattern emerges depriving an agency worker of their entitlements, it will be considered as an avoidance.

8. 12 week qualifying period continued • New hirer must be a different person / legal entity. Anti-avoidance provisions prevent assignments being structured to prevent completing the qualifying period; • New role with same hirer must be substantively different;. There has to be a genuine and real difference to the role for the clock to reset to zero; • For the clock to reset to zero, the hirer must notify the agency that the work / duties have changed. This information must be passed to the agency worker, providing a description in writing to the agency worker.

9. Pausing and resetting the clock

10. Who is OUTSIDE of the scope: • individuals who find work through a temporary work agency but are in business on their own account (Self-Employed); • those working on Managed Service Contracts not under the direction and supervision of the host organisation; It is important to be aware of a number of anti-avoidance provisions set out in the AWR in order to establish a genuine outside the scope position.

11. Swedish derogation (Reg 10) • This type of contract offers an exemption from equal treatment provisions on pay (and holiday pay); • The Agency, offers an agency worker, a permanent contract of employment, and seconds the worker to the Hirer. The worker is paid between assignments; • Permanent contracts providing for pay between assignments have to be entered into before the beginning of the first assignment under that contract; • The contract of employment has to contain a statement that the agency worker does not have any entitlement to equal pay as set out in AWR.

12. “Swedish derogation” continued • During the periods when agency worker is not working due to no available suitable assignments for the agency worker, the agency has to pay them for a minimum of 4 weeks; • The rate of pay between assignments must be at least 50% of on assignment pay, or at least National Minimum Wage calculated at the highest pay rate and hours enjoyed in the course of the previous 12 weeks • The Regulations refer to contracts of greater than ‘one hour’ per week • ‘Zero hours’ contractwill not meet the requirements of the derogation contract