The aim of this article is to help hirers of temporary agency workers and the recruitment sector to understand the Agency Workers Regulations (AWR) and the implications and responsibilities for both hirers and temporary work agencies.
Background
The Agency Workers Regulations 2010 give temporary agency workers the right to equal treatment in terms of the same basic working and employment conditions as they would have been entitled to had they been recruited directly by a hirer to do the same job. Equal treatment relates to pay and other basic employment conditions, such as annual leave, rest breaks etc.
What does this mean for my school?
If you are an employer and hire temporary agency workers through a temporary work agency, you should provide your agency with up to date information on your terms and conditions so that they can ensure that an agency worker receives the correct equal treatment, as if they had been recruited directly, after 12 weeks in the same job. You are responsible for ensuring that all agency workers can access your facilities and are able to view information on your job vacancies from the first day of their assignment with you.
When does AWR apply?
To qualify for AWR the temporary agency worker needs to have worked in the same role with the same hirer for 12 calendar weeks. This period is known as the 12 week minimum qualifying period.
After an agency worker completes this 12 week qualifying period with the same hirer, in the same role, they will be entitled to have the same basic terms and conditions of employment as if they had been employed directly by the hirer.
They are:
key elements of pay
duration of working time e.g. if working is limited to a maximum of 48 hours a week
night work
rest periods
rest breaks
annual leave
In addition, pregnant agency workers who have completed the 12 week qualifying period, will be entitled to paid time off for antenatal appointments.
What if the temporary agency worker moves from one school to another within the same trust?
The qualifying clock will be reset to zero if the temporary agency worker stops working for one hirer and begins working for another. Generally such situations will be clear. A new hirer for this purpose must be a different person (a different legal entity). Where a single hirer has multiple sites, merely moving the worker from one site to another will not usually break continuity (unless it is a substantively different role).
What if there are breaks during the temporary agency worker’s engagement with the school?
The qualifying period will be paused (rather than stopped) if the worker takes:
a break of six calendar weeks or less; or
certified sick leave for no more than 28 weeks; or
statutory/contractual maternity, adoption or paternity leave; or
time off for public duties (including jury service up to 28 weeks).
a break caused by a regular and planned shutdown of the workplace by the hirer (for example at Christmas)
a break caused by a strike, lock out or other industrial action at the hirer’s establishment
What if the temporary agency worker’s role changes significantly?
If there is a substantive change to a job role within the same hirer, a new qualifying clock commences for the new role. However, for this to happen, the work or duties which make up the whole or main part of a role must be substantively different; it is not enough that a line manager has changed but not the job requirements or that the agency worker has transferred between similar administrative functions or has moved within a single, relatively small business unit or has been given a different pay rate.
None of these things by themselves would be sufficient. There has to be a genuine and real difference to the role.
Pay - what does my school need to take into account?
‘Pay’ includes:
basic pay based on the annual salary an agency worker would have received if recruited directly (usually converted into hourly or daily rate, taking into account any pay increments)
overtime payments, subject to any requirements regarding the number of qualifying hours
shift/unsocial hours allowances, risk payments for hazardous duties
payment for annual leave (both for the statutory minimum of 5.6 weeks and for any additional leave entitlement) – to avoid confusion this should be identified separately on the agency worker’s payslip
bonus or commission payments directly attributable to the amount or quality of the work done by the individual. This can include commission linked to sales or production targets and payments related to quality of personal performance (see sections below on bonuses linked to personal performance and performance appraisal systems). This might also include non-contractual payments which have been paid with such regularity that they are a matter of custom and practice.
vouchers or stamps which have monetary value and are not “salary sacrifice schemes” – e.g. luncheon vouchers, child care vouchers
To provide relevant details to Zen, please contact your account manager or email support@zeneducate.com.