Transcript Agency Workers Regulations 2010

Agency Workers
Regulations 2010
in force since October 1st 2011
Summary
Who do the Agency Workers
Regulations apply to?
• Individuals who work as temporary
agency workers;
• Businesses who take in Agency
workers (Hirers)
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
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)
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.
“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.
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.
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.
Pausing and resetting the clock
Type of absence that affects
12 week qualifying period
Effect on 12 week
qualifying period
Break between assignments of
more than 6 weeks
Clock resets to zero
Any reason where the break is
less than 6 weeks:
Pauses the clock
Sickness absence
Pauses the clock for up to 28 weeks
Annual leave
Pauses the clock
Shut downs e.g. closures, school holidays
Pauses the clock
Jury service
Pauses the clock for up to 28 weeks
Industrial action
Pauses the clock
Pregnancy and maternity-related absence
Clock keeps ticking
Statutory maternity, paternity or adoption leave
Clock keeps ticking
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 antiavoidance provisions set out in the AWR in order to
establish a genuine outside the scope position.
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.
“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’ contract will not meet the requirements of
the derogation contract