The Agency Workers Regulation (AWR) directive came into force on 1st October 2011. The primary purpose of the regulation is to ensure that agency workers (temps, contractors etc.) get no less favourable treatment with respect to basic employment and working conditions than a direct hire (Permanent) employee doing the same job.

‘Basic employment and working conditions’ covers things such as:  

  • Access to facilities (staff canteens, child care etc.)
  • Access to vacancies (i.e. the right to be informed of vacancies at the hirer)
  • Pay
  • Duration of working time
  • Night work
  • Rest periods
  • Rest breaks
  • Annual leave
  • Paid time off for ante natal appointments

The AWR is the UK implementation of the EU Agency Worker Directive (AWD). Each country in the EU has implemented the AWD in its own way, and negotiated its own levels of flexibility. A key element of the UK AWR is the inclusion of a qualifying period before equality has to be provided in some of the areas listed above.

From day one the AWR provides the right to equality on:

  • Access to facilities (staff canteens, child care etc.)
  • Access to vacancies (i.e. the right to be informed of vacancies at the hirer)

For the other items on the list, the agency worker has to have worked for the same employer in the same role (but not necessarily the same job/assignment) for a ‘continuous’ 12 week period before they are entitled to equality.

Calculating a ‘continuous 12-week period’ is not as straightforward as it sounds, as breaks in the period and even previous assignments organised through other agencies might contribute to the accumulation of 12 weeks of continuous employment. The key elements are:

  • The 12-week period is actually 12 calendar weeks, with day one of the assignment being the first day of week one. Any amount of work performed within a 7-day period based on that start day counts as a calendar week worked (so even if the agency worker only does an hour or two a week it still counts as a week worked).
  • To count towards the qualifying period, the worker has to be with the same hirer in the same role. In this context the ‘hirer’ is the legal entity (i.e. not the division, branch or manager), and the ‘role’ is job role based on responsibilities, skills etc. (i.e. not necessarily job title). For example, different assignments as a shelf stacker, reporting to different managers at different branches of Sainsbury’s could all count as one continuous period of employment.
  • Based on the above, it is also the case that the accumulated weeks don’t have to be in placements made by the same agency – it’s based on the same role for the same hirer and is therefore independent of the agency making the placement.  
  • It is recognised that an agency worker might work for multiple hirers in a week and it is therefore possible to have multiple qualifying periods running concurrently.  
  • A break of less than six weeks for any reason simply ‘pauses’ the accumulation of qualifying weeks. This can be a break within the scope of an assignment (holiday, sickness etc.) or between assignments. For some specific conditions (maternity for example) the break can be 6 weeks or more and still only pause the clock.  
  • During a break the agency worker is free to carry out other assignments for other hirers (or even the same hirer in a different role) because this falls under the concept of working for multiple hirers.  
  • Starting a new role with a new hirer obviously ‘stops’ the clock and the agency worker begins accumulating qualifying weeks from scratch.
  • While there are some exemptions from the AWR they are fairly limited and it’s almost certainly true to say that just about all temps and contractors, whether PAYE, Umbrella Company or Limited Company will be covered by the new regulations. 

Two key exemptions are:  

  1. Workers operating through their own limited company that are ‘genuinely in business for themselves’ and have a business-to-business relationship with the end hirer. The average temp or contractor that uses their own limited company or an umbrella company will not qualify for this exemption. 
  2. ‘Pay Between Assignments’ workers (sometimes referred to as the Swedish Derogation) will also be exempt. In this instance the worker is a direct hire of the agency, and is paid by them even when they aren’t out on assignment at a client. This arrangement may be popular with agencies that have on-going service contracts to supply large numbers of agency staff.
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