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Agency Workers Regulations (AWR)
What is the AWR?
The AWR is part of EU legislation designed to protect agency workers. It aims to provide all agency workers the entitlement to the same basic employment and working conditions as if they had been recruited directly. Some of these new rights need to be available from day one of an assignment, whilst others will only come into effect once the agency worker has completed a 12 week qualifying period in the same job with the same hirer.
When did the AWR come into effect?
The AWR became law in England and Wales on 1st October 2011.
Day 1 rights for all agency workers
From day one of an assignment an agency worker will be entitled to the same access to collective facilities and information such as the following, which a directly employed member of staff in the same job has.
- Access to internal vacancies *
- Crèche **
- Canteen
- Food and drink machines
- Toilets/shower facilities
- Common room
- Car parking **
- Prayer room
- Local pick-up/drop-off **
* This does not mean that the agency worker will automatically have the right to be employed by the hirer; they will need to follow the hirer’s usual recruitment process.
** If there is a waiting list, the agency worker will not automatically be entitled to a place but can apply and join the waiting list.
Schools need to be able to advise agency workers exactly which facilities apply as they will vary from school to school. Day 1 rights do not include ‘enhanced’ access rights that are given as part of a benefit package to reward long term service and loyalty e.g. subsidised access to an off-site gym, subsidised meals in the canteen or discounted company goods in a staff shop.
After 12 weeks in the same job with the same hirer
After 12 week qualifying period an agency worker will be entitled to the same basic working and employment conditions as a directly employed member of staff in the same job has. These include:
- Pay
- Duration of working time
- Night work
- Rest periods
- Break periods
- Annual leave
- Paid time off for ante-natal appointments
- Access to training
What does “equal pay” include?
Equal pay includes basic salary, bonuses or commission payments related to the quantity and quality of your work, shift allowance, overtime payments, holiday pay and vouchers (providing they have a fixed monetary value and are not part of a salary sacrifice scheme).
What is NOT included in “equal pay”?
Equal pay does NOT include benefits in kind, vouchers which are a salary sacrifice, pension payments, occupational sick pay, redundancy pay, notice pay, advances and loans, share and option schemes, maternity, paternity and adoption pay (over and above the statutory entitlement), bonus payments which are not directly attributed to your performance, Guarantee payments, expenses or health/life insurance.
Holiday pay
After the 12 week qualifying period the agency worker will be entitled to any holiday the hirer grants in excess of the statutory minimum paid holiday entitlement as direct recruits. For permanent teachers in schools maintained by an authority in England and Wales there is no specific provision in the School Teachers’ Pay and Conditions Document for holidays or annual leave. There are provisions on working time. As for other workers, agency supply teachers should receive payment for statutory annual leave when they take the leave, i.e. be paid on a 1/365 basis at regular intervals throughout the year.
12 week qualifying period
- The 12 week qualifying period is activated by working in the same job with the same hirer for 12 calendar weeks, irrespective of the working pattern (e.g. full time or part time) and irrespective of which or how many agencies supplied the worker to the same role with the same hirer.
- A calendar week will comprise any period of seven days starting with the first day of an assignment.
- Calendar weeks will accumulate even if they only work a few hours a week.
- If thought of as a clock which runs 0 to 12 there are circumstances which will reset the clock, pause the clock or allow it to continue ticking.
Reasons the 12 calendar weeks will be reset to 0
- Most commonly a new assignment with a new hirer.
- An agency worker remains with the same hirer but is no longer in the same role.
- A break between assignments with the same hirer of more than 6 weeks (which is not one which ‘pauses’ the clock or allows it to continue to ‘tick’)
Reasons the 12 calendar weeks will be paused:
- A break for any reason that is no more than 6 calendar weeks where the agency worker returns to the same role with the same hirer.
- A break of up to 28 weeks because the agency worker is incapable of work due to sickness or injury
- Any break for annual leave which the agency worker is entitled to
- A break of up to 28 calendar weeks for the agency worker to perform jury service
- A break caused by regular and planned shutdown of the workplace by the hirer (e.g. school holidays)
- A break caused by a strike, lock out or other industrial action at the hirer’s establishment
Reasons the 12 calendar weeks will continue to tick:
- Breaks due to pregnancy, childbirth or maternity which take place during pregnancy and up to 26 weeks after childbirth
- Any breaks due to maternity, paternity and adoption leave
How to determine what counts as a new assignment with the same hirer, resetting the qualifying period?
To reset the qualifying period the duties of the role must be significantly different. A number of factors should be considered such as is there a change in reporting lines? Has the rate of pay changed? Is the location different? Have the working hours changed? Have the skills and competencies required changed? Is extra training required?
How do you determine who the worker should be “compared” to?
It should be someone that is a permanent employee of the hirer doing the same or broadly similar work with a similar level of qualification and skills.
If the hirer has pay scales or pay policies it will be clear what the worker would be paid if they had been recruited directly, taking account of skills, qualifications, expertise and experience.
If there are no permanent employees to compare the worker to then national rates of pay for that role will be useful guidelines in regards to equal pay. The hirer may have a clear policy on annual leave and other working conditions that the agency worker will be entitled to.
What if a qualified teacher is hired to do a cover supervisor or teaching assistant role?
The relevant rate of pay is determined by the nature of the job, not the qualifications of the teacher. For example, if a school asks a temporary work agency to provide a Cover Supervisor or a Teaching Assistant, and the person engaged to do the work is a qualified teacher, they would be expected to carry out the role of a cover supervisor or a teaching assistant and be paid as a cover supervisor or teaching assistant. The role of a cover supervisor is to supervise a class in carrying out a pre-prepared exercise but it does not involve teaching a class. If, however, the person is asked to do specified work as part of this role then after the qualifying period, they must be paid as outlined below.
What if a qualified teacher is hired to do a teaching role in a maintained school?
If the school asks a temporary work agency to provide a teacher to carry out specified work in a school and the person engaged to do the work is a qualified teacher they should be paid as a qualified teacher. If the person engaged to do the specified work is an unqualified teacher they should be paid as an unqualified teacher. “Specified work” means planning, preparing and delivering lessons and courses to pupils and assessing and reporting on the development, progress and attainment of pupils. The pay scales for teachers in schools maintained by a local authority are set out in the School Teachers’ Pay and Conditions Document (this does not cover teaching assistants or other people who are employed to carry out specified work under paragraph 10 of Schedule 2 to the Education (Specified Work and Registration) England Regulations 2003).
Academies, Free Schools and independent schools are free to set their own pay and conditions of employment. As such if a temporary workers’ agency is asked to supply a teacher to one of these schools it will need to request information from the school as to the relevant terms and conditions to be applied to the agency supply teacher after 12 weeks in the same role with the same hirer (refer to main guidance). These are of course subject to the usual requirements under employment law.
Who is the hirer?
In regards to supply teachers and support staff the question of ‘who is the hirer?’ needs to be determined in the light of the circumstances of each case.
Maintained Schools
In foundation schools, voluntary aided schools and foundation special schools, the “hirer” is the school’s governing body as they are the legal entity to whom the worker is supplied and are responsible for the supervision and direction of that worker.
In community schools, voluntary controlled schools, community special schools and maintained nursery schools, the “hirer” is either the local authority or the school’s governing body. This will need to be determined in each case and will depend on who the worker is supplied to and who supervises and directs that person’s work.
This means an agency supply teacher or support staff can move between maintained schools where the same local authority is the hirer without stopping the clock on the qualifying period unless it is a different role.
Academies
In Academies and Free Schools the “hirer” is the proprietor of the school (often known as the “Academy Trust”) as they are the legal entity to whom the worker is supplied and are responsible for the supervision and direction of that worker.
This means an agency supply teacher or support staff can move between Academies where the same Academy Trust is the hirer without stopping the clock on the qualifying period unless it is a different role.
Independent schools
In independent schools, the “hirer” is the proprietor of the school, as they are the legal entity to whom the worker is supplied and are responsible for the supervision and direction of that worker.
This means an agency supply teacher or support staff can move between independent schools where the same proprietor is the hirer without stopping the clock on the qualifying period unless it is a different role.
How can we avoid these regulations?
These regulations cannot be avoided as they contain “anti-avoidance provisions”. If a worker can show that the hirer or agency have used a pattern of assignments to deprive the worker of their rights the worker can bring a claim to the employment tribunal. Breach of these regulations could mean an award of up to £5000 compensation be made to the worker. There is a minimum award of 2 weeks pay.
Who is liable for a breach of these regulations?
In regards to “day one rights” liability for any breaches will rest solely with the hirer as the agency has no control over these.
In regards to “12 week rights” any party in the chain can be held liable for any breaches. The agency can only provide the worker with equal pay and employment conditions if the hirer has provided the necessary and correct information in the first place.
For more information on AWR:
http://www.direct.gov.uk/en/Employment/Understandingyourworkstatus/Agencyworkersandemploymentagencies/DG_198913
http://www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance
