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Agency Workers Regulations

Frequently Asked Questions

Please note that all references to ‘Agency’ apply to Hudson and all references to ‘Hirer’ apply to our clients.
1) What is the aim of the legislation?

The AWR are designed to give temporary agency workers equal treatment akin to permanent employees with regard to pay and working conditions.

The right to equal treatment will apply as follows:

  • After 12 weeks in the same role, workers will be afforded equal pay and employment conditions as if they had been hired directly into that role by the Hirer at the start of the 12 week period.
  • ’Day One rights’ :  Workers will have the right to be informed of any relevant vacancies within a Hirer’s organisation and will have the right to gain access to collective facilities provided by the Hirer such as a Hirer’s crèche and childcare facilities, canteen facilities, car parking and the provision of transport services.
2) When did the AWR come into force?

The AWR came into effect on 1st October 2011 in England, Scotland and Wales. In Nothern Ireland they came into effect on 5th December 2011.

The Regulations are designed to provide temporary agency workers with equal treatment akin to permanent employees with regards to pay and working conditions once they have completed 12 weeks in the same role with a Hirer.

However, the 12 week qualifying period is not retrospective so for those temporary workers currently engaged on an assignment with a Hirer when the Regulations came into force those temporary workers will only start to accrue towards equal treatment from 1st October 2011.

3) Who does the legislation apply to?

The legislation applies to temporary agency workers on a temporary contract working through an employment business at a Hirer's site.  The legislation impacts PAYE Temporary Workers, those contractors working through umbrella companies and those working through personal service companies that are not considered to be genuinely in business on their own account.

4) Who does the legislation not apply to?
  • Contractors who are providing their services via a personal service company (Limited Company) and who are considered genuinely self employed
  • Permanent employees and candidates who are seeking permanent employment direct with Hirers
  • Candidates who are employed on a fixed term contract basis
5) What does equal treatment mean in practice?

Temporary workers are entitled to the same pay and working conditions as equivalent permanent employees after 12 weeks in the same role had they been employed by the Hirer directly. 

This includes:

  • same basic hourly or daily rate
  • commission payments
  • holiday entitlement
  • overtime
  • shift allowances
  • bonuses linked to individual performance
  • working conditions

Equal treatment will NOT extend to:

  • occupational sick pay
  • maternity, paternity and adoption leave
  • redundancy payments
  • financial participation schemes including share option and profit sharing schemes
  • pension contributions and
  • bonuses and incentives not linked to performance or quality and/or quantity of work completed, such as company performance
6) How does the 12 week qualifying period work?

Equal treatment provisions will apply after a temporary worker has been engaged in the same role at the same Hirer on an assignment for 12 calendar weeks doing broadly similar duties.

This 12 week period is not retrospective so for those temporary workers who were already engaged as at 1st October 2011, the 12 week period will have started from 1st October 2011.

The 12 week qualifying period can be broken in the following ways:

  • The worker goes to work for a different Hirer (or an entirely separate company unconnected to Hudson) and does not return within 6 weeks.
  • The worker undertakes a ‘substantively different’ role with the Hirer.  This would mean they would need to have a very different set of duties. Simply switching reporting line for instance would not make the role substantively different.
  • There is a 6 week break between assignments for the same job with the same Hirer.

The 12 week qualifying period can be paused if the worker takes annual leave, takes certified sick leave or takes time off for jury service.

The 12 weeks continue to accrue if the absence is for reasons relating to pregnancy or maternity.

7) Can the 12 week qualifying period be paused?

Yes. In some instances the 12 week qualifying period will ‘pause’ if the temporary worker is absent during an assignment. This means that where an absence occurs it may not necessarily stop the 12 week clock from accruing towards equal rights, but will pause it and the clock will resume when the temporary worker returns to an assignment.

Not all absences will result in a pause to the clock however. In some cases, where specific types of absence occur, it will be deemed that the temporary worker is still engaged on the assignment and the 12 week qualifying period will continue to count.

A summary of how specific absences may affect the 12 week period are outlined below:

Type of Absence

Effect on 12 week ‘clock’

Pregnancy, maternity, paternity or adoption leave

Clock continues

Pregnancy and maternity related absence (from the date of pregnancy until 26 weeks from childbirth)

Clock continues

Absence for any reason where the break is 6 weeks or less

Clock pauses

Absence due to sickness

Clock pauses (for up to 28 weeks)

Annual leave

Clock pauses

Work place closure

Clock pauses

Jury service

Clock pauses (for up to 28 weeks)

Industrial action

Clock pauses

*Table reference provided courtesy of the REC: 
'Legal Briefing', published June 2011

8) As a Hirer, what should I be doing to prepare for AWR?

Hirers should take the opportunity to review your existing arrangements and processes when engaging temporary workers.

It may be useful to conduct an impact assessment to look at the following:

  • Producing a checklist of key points and information which should be obtained prior to releasing a temporary job spec/instruction
  • Conduct an audit of current working conditions and practices to help you identify any key differences in roles, salary bandings and/or departments that may contribute to comparator information or equal treatment when the AWR comes into force
  • Conduct an audit of your current temporary workforce to identify any key differentiators in pay or working conditions that may indicate areas where temporary workers do not currently have equal treatment with their permanent comparators
9) What comparator information does Hudson request from Hirers?

Hudson’s preferred approach is to determine whether a particular placement is in scope of AWR as early as possible in the hiring lifecycle. Our preferred point is to confirm perm comparator details at the job instruction stage.

However at a minimum, Hudson will request information from a Hirer at the point of offering a role to a candidate. At this point we will be able to ascertain which contracting route the candidate wishes to pursue.

If the candidate is operating on a self employed basis via their own Limited Company they will be considered out with the scope of the AWR.

In the event the candidate wishes to work on a PAYE basis or through an Umbrella Company we will issue a request for comparator information from the Hirer in order to allow us to ensure that the placement complies with the provisions under AWR.

The key comparator information we ask from Hirers to ensure AWR compliance are:

  • Job Instruction Stage – We ask Hirers for salary and working conditions of equivalent permanent comparators.
  • Candidate Selection Stage – We will ascertain with the candidate which contracting route they wish to pursue. If self employed via a Limited Company there will be no further requests for comparator information as the candidate will be considered out with the scope of AWR.
  • Job Offer Stage – If the candidate is operating on a PAYE basis or through an Umbrella Company we will ask Hirers for confirmation of the salary bandings and working conditions of equivalent permanent comparators (if not already provided at Job Instruction Stage).

Whilst this approach may result in some additional compliance at the offer and onboarding stages, given that most temporary placements via Hudson exceed 12 weeks it should make the process easier for all parties to ensure that a placement is compliant with AWR from day one of the contract.

10) What if a temporary worker has already been on assignment with a Hirer through another agency?

In the event the temporary worker has already completed work with the Hirer through another agency, the time worked may count towards the 12 week qualifying period.

11) How do the Regulations impact the status of Temporary Workers?

Although the Regulations afford equal treatment to Temporary Workers, this does not represent a change in their employment status.

12) Can a temporary worker request information about equal treatment and who is responsible for complying with the request?

The AWR provides temporary workers with the right to ask the agency and in some instances the Hirer for information relating to equal treatment provisions.

However, the request can only be made once the 12 week qualifying period has been reached, at which point the temporary worker can request a written statement from their agency.

In the event the temporary worker does not receive a response from the agency within 28 days of the request they can direct the request to the Hirer.

Failure to provide written information regarding equal treatment will not result in the agency worker being able to lodge a tribunal claim. However, if for any reason the temporary worker raises a claim for breach of the AWR an Employment Tribunal may look to the fact that written information was not provided upon request when deciding an outcome.

13) Are there any exemptions to the AWR?

Yes, there is a possible exemption to the AWR. It is referenced to as the Swedish Derogation model.

Where a temporary worker is engaged under a permanent contract of employment by an Agency, and paid between assignments (at 50% of the assignment pay), the AWR will not apply provided that all provisions of the Regulations have been met.

A number of umbrella companies have indicated that they will adopt the Swedish Derogation model for temporary workers and we will be monitoring this.

Hudson itself will not be engaging temporary workers directly under a permanent contract of employment, nor do we intend to engage with umbrella companies under this model.

14) What if agency workers are typically paid more than a Hirer’s own employees? Does that obligate a Hirer to drop their rate of pay to match the rate paid to a permanent counterpart?

No. If the Agency worker supplied is on a higher rate of pay than a Hirer’s own employee/s then their pay does not need to be lowered.

15) Are there Anti-Avoidance measures in place?

Yes, there are provisions in place to prevent abuse or perceived avoidance of the Regulations.  The measures are in place to target instances where a Hirer or Agency structures temp assignments with the intent to deprive a temporary worker of equal treatment provisions that would typically apply after the 12 week qualifying period. This can include, for example, moving temporary workers between different companies/areas within the same Hirer to reset the 12 week qualifying clock.

Tribunals will be able to make an additional award of up to £5000 where a Hirer and/or Agency have been found to be in breach.

16) Who is liable for breaches under the Regulations?

The responsibility for providing the temporary worker with equal rights is split between the Hirer, the Agency and any relevant umbrella company (if the temporary worker operates through an umbrella).

With regards to Day One rights of an assignment, the Hirer would be liable for any breaches if the temporary worker is not afforded equal treatment with regards to accessing vacancies and collective facilities.

For rights afforded after the 12 week qualifying period, the Agency is responsible for setting the Temporary Worker’s terms and conditions.  The Agency will be responsible for any breach in relation to a Temporary Worker’s pay and employment conditions provided that the necessary information was provided by the Hirer initially.  If the Hirer provides inaccurate information to the Agency or if the Hirer does not notify the Agency of a change to pay or working conditions then the liability would rest with the Hirer.  

17) How are pregnant workers impacted?

After the 12 week qualifying period, pregnant workers are entitled to paid time off whilst attending ante-natal appointments.  There is also a duty to find such workers suitable alternative work if for reasons relating to their pregnancy they cannot complete an assignment.

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