What is AWR?
The Agency Workers Regulations 2010 is UK based legislation derived from an EU Directive. The Regulations define the new employment status of “agency worker”, and provide agency workers with a set of employment rights.
The aim of the legislation is to ensure that temporary workers working through recruitment firms are provided with employment rights similar to those they would have received if they had been working permanently for the end user client. The main right provided by the Regulations is the provision of basic working and employment conditions equal to those enjoyed by permanent staff.
Am I an Agency Worker?
An Agency Worker is someone who:
1) works temporarily; and
2) works via a recruitment firm (or other intermediary); and
3) works under the supervision and direction of an end-user client, and
4) has a contract or employment or engagement with that recruitment firm (or other intermediary).
All four of the above elements need to be in place for you to qualify as an Agency Worker.
a) If you work on site at an end-user client for a 7 week temporary placement, and a recruitment firm found you your role, and the recruitment firm pays your salary, and deducts tax and NI before payment, then you will have a contractual agreement with the recruitment firm, and you would be considered an agency worker.
b) If you work on site at an end-user client for a 7 week temporary placement, and a recruitment firm found you your role, and the end-user client pays your salary, then it is likely that you are being engaged directly by the end-user client, in which case you would not be considered an agency worker.
You will not be an Agency Worker if you:
- have a contract directly with the end-user client, even if a recruitment firm helped you find the work;
- do not work under the supervision and direction of a client;
- are genuinely self-employed, working through your own limited company, and the end-user client is in effect a customer of your business. See “Am I genuinely self-employed?”
Understanding your rights – Day one rights
Access to collective facilities and amenities:
From day one of every assignment you undertake you will be entitled to access to the same facilities that the end-user client provides to its permanent staff.
Such facilities will usually be provided on the end-user client’s site (although not always, you may be entitled to use facilities on a related client site for instance), and would normally be funded by the client.
Examples of the kinds of facilities you will be entitled to use include:
- canteen (but this does not mean that you would be entitled to any subsidies available to permanent employees);
- workplace crèche;
- car parking;
- drinks machines;
- toilets and showers.
This is not an exhaustive list, different clients will have different facilities available. It is likely that your recruitment firm will make you aware of the end-user client facilities available to you before you start an assignment.
Access to relevant vacancy information:
From day one of every assignment you undertake you will be entitled to the same access to information about internal end-user client vacancies, as permanent employees undertaking the same role as you would have.
This new right does not entitle you to any preferential treatment in terms of any applications you make to a client.
You must be provided with access to all day one rights, irrespective of how long your assignment is, even if it’s only for one day, you have the right to access the end-user client’s facilities and relevant internal vacancies.
Understanding Your New Rights – Equal Treatment Rights
You can only accrue these rights from the 1st October 2011, any time on assignment before that date will not count towards the qualifying period. After the completion of a qualifying period (see “At what point do I qualify for these rights?”), you will be entitled to the same basic working and employment conditions as any employee or directly engaged worker of the client, who is doing the same or a broadly similar role as you.
So once you have completed your qualifying period for a particular role with a particular end-user client you will receive the same:
- pay (which includes basic pay, overtime, shift or unsocial allowances, holiday pay, and bonuses directly linked to the quality or quantity of the work you do;
- duration of working time;
- night work;
- rest periods;
- rest breaks; and
- annual leave
as the end-user client’s permanent employees doing a broadly similar or comparable role.
Your recruitment firm will usually provide you with information about the comparable terms that you will receive after the completion of your qualifying period, either:
- at the beginning of your assignment, if it is known that the assignment will definitely last longer than 12 weeks, and it is therefore likely that you will complete your qualifying period; or
- at some point before the completion of your qualifying period. This would usually be at the point that it becomes clear that the assignment will continue beyond the 12 week qualifying period.
Understanding Your New Rights – Pregnancy & Maternity Rights
You can only accrue these rights from the 1st October 2011, any time on assignment before that date will not count towards the qualifying period. After the completion of a 12 week qualifying period (see “At what point do I qualify for these rights?”) you will be entitled to:
- Paid time off for ante-natal appointments (this does not include the first appointment of your pregnancy).
- Alternative assignments where you cannot continue in an assignment due to health & safety reasons (where no alternative can be found you will be paid for the duration of the original assignment).
At what point do I qualify for these rights?
Day One Rights:
Access to the end-user client’s facilities and information about relevant internal vacancies must be given to you from the very first day of your assignment, regardless of how long the assignment lasts.
Equal Treatment & Pregnancy and Maternity Rights:
Before you are entitled to the Equal Treatment and Pregnancy and Maternity rights, you must complete 12 weeks on assignment in the same or broadly similar role with the same end-user client.
Each new role you work in for each end-user client will have its own qualifying period. The qualifying period is not specific to the recruitment firm, and can span more than one assignment (as long as it’s in the same role at the same end-user client). So if you return to the same role at the same end-user client through a different recruitment firm your qualifying period could continue.
For the purposes of the qualifying period, to complete one week, you must work any period during that week. So for instance, if you work part-time, and only work three days a week, each three-day week will count as one week of your qualifying period.
When the Qualifying Period Pauses:
There may be breaks between or within an assignment that pause the qualifying period, so that the weeks worked before the break will be carried forward to the new assignment after a break. These are:
- a natural break between assignments of no more than six weeks;
- a break during an assignment when you take annual leave;
- a break during an assignment when you are absent due to sickness (up to a maximum of 28 weeks).
For example: if you work on an assignment for 3 weeks, then take 2 weeks annual leave, if you return to the same role at the same end-user client after your leave you will have already accrued 3 weeks of your qualifying period, and the first week back will be week 4.
When the Qualifying Period Resets to Zero:
If there is a break between assignments of more than six weeks this will reset the qualifying period for that role back to week 1.
When the Qualifying Period Continues:
The qualifying period will continue to accrue during any breaks related to pregnancy/maternity, or for maternity, paternity, or adoption leave.
If you start a new assignment (one in which the role and responsibilities are substantively different to the previous assignment) with the same end-user client, your qualifying period will reset to week 1, because it is a different role. In this case, the recruitment firm must tell you in writing that it is a new role, so that you are aware that your qualifying period will reset.
Your recruitment firm will usually, at the beginning of each assignment make you aware of the status of your qualifying period in that role. If you do not agree with the recruitment firm’s calculation, you should contact them immediately to resolve the discrepancy.
It is likely that to assist the recruitment firm in ensuring that your qualifying period is calculated correctly, they will ask you for information about previous assignments with particular end-user clients. The more complete the information is that you provide them with, the more likely they will be able to calculate your qualifying period correctly.
How long do my rights last?
You will be entitled to Day One Rights at all times that you are working on assignment at an end-user client.
Once you have completed your qualifying period for a particular role at a particular end-user client you will be entitled to equal treatment and pregnancy and maternity rights for as long as that assignment continues without a break that has the effect of resetting that qualifying period (i.e. a break of more than 6 weeks, or a break due to illness which lasts more than 28 weeks).
Remember, each different role will have its own qualifying period, and once completed your rights for that role will last until that particular qualifying period is broken.
What do I do if I’m not given the correct entitlements?
If you are not receiving the day one rights that your recruitment firm told you would be made available to you, or that you believe you should be entitled to, then we would recommend that you immediately speak to your recruitment firm. The recruitment firm can then speak to the client and ascertain whether or not the facility is within the scope of the Regulations, and if it is, request on your behalf that access to such facility is made available to you.
If, having completed your qualifying period you do not believe that you are receiving the correct equal treatment or pregnancy and maternity rights, we would strongly recommend that you immediately speak to your recruitment firm, so that they can investigate the situation. In most cases this will allow the recruitment firm to rectify any mistakes without much inconvenience or disruption.
If in the unlikely event that your recruitment firm does not provide you with an answer, or you are not satisfied with their explanation, you can make a written request to the recruitment firm to provide information regarding the entitlements in question. The recruitment firm should respond in writing to you within 28 days.
Ultimately, claims for unlawful treatment under the Regulations will go to an Employment Tribunal.
What is the Pay Between Assignments Model or “Swedish derogation”?
Your recruitment firm may make an offer of employment to you under a Pay Between Assignments (or Regulation 10) contract. You would continue to work on temporary assignments at end-user client sites.
This is a contract of employment, and you would become an employee of the recruitment firm. This employment contract would stipulate the basic terms of any assignment that you would undertake for them – i.e. it would set out what is a “suitable assignment”, that you are happy to undertake for the recruitment firm’s end-user clients.
This employment contract would also specify that for any periods during which a temporary assignment could not be found for you, as long as you are available to work in that period, then the recruitment firm will pay you. The amount of pay that you would receive between assignments must also be stipulated in the employment contract, and this must be at least 50% of the highest pay you received in a week or month (dependent upon how often you are paid) on assignment in the last 12 weeks (or during the last assignment if it was less than 12 weeks). However, your pay when between assignments must be at least National Minimum Wage.
Once you have entered into this employment contract you will no longer be entitled to equal pay, as described above. You will still be considered an agency worker, and you will still be entitled to all the other rights conferred by the Regulations, but you will no longer be entitled to equal pay.
At the end of the employment relationship, before your employment contract can be terminated by the recruitment firm you must have been paid at least 4 weeks of “pay between assignments” pay during the period of your employment.
Am I genuinely self-employed?
The Government’s guidance states that the Regulations exclude those who are in business on their own account, where the status of the end-user client is that of a customer or client of a “profession or business undertaking” carried on by the individual (i.e. a genuine business to business relationship).
In reality this means that individuals working through their own limited company may be outside of scope if they are working in a true consultancy role, rather than as a worker under the supervision and direction of the end-user client.
Below is a list of statements that would indicate that an individual is in business on their own account.
If the majority of the statements below reflect the reality of your situation, then it is possible that you will fall outside the scope of the Regulations. However, please note, that this is not an exhaustive list, and the Government has provided no guarantee that any or all of the factors below will definitely put an individual outside scope.
Factors to Consider When Assessing Genuine Self-Employment:
- You are not under the supervision and direction of the end-user client. You provide independent services, and the end-user client does not treat you as if you were part of their organisation.
- The reality of the situation is that you are responsible for the delivery of the services, and you determine and control when and how you undertake the assignment, as long as you meet client-specific targets or project completion dates.
- You can provide a substitute, at your own expense, to undertake the services you are performing for the end-user client. You do not have to perform the work or services personally, and the end-user client will accept a substitute (subject to that substitute having the requisite skills and capabilities required).
- Your limited company effects and maintains adequate business insurances, including those required by law and insurances in line with best practice including public liability and professional indemnity.
- Your limited company submits invoices for work completed, or agrees to a self-billing arrangement.
- Your limited company is responsible for paying the required tax and NICs on any amounts paid in respect of the work undertaken, and all amounts are treated as trading income.
- You are only paid for services performed. There are no payments made for any time when you are not available for work (including but not limited to holiday pay or sick pay).
- You provide the main items of tools, equipment or materials, computer hardware or software (“equipment”) that are required to perform the services. These are not provided by the end-user client except where the end-user client has a business-critical requirement for you to utilise their equipment (for example due to security, data protection or safety reasons).
- You accept liability for any failure to perform the services satisfactorily, or any acts or omissions, including those of any substitute. You are responsible for correcting any services performed for the end-user client that are unsatisfactory, in your own time and at your own expense.
- You have personal financial risk in undertaking the services, and in running your business. You are responsible for meeting the losses, as well as taking the profits from your business.
- You are responsible for what work you undertake and how your business is run. You may provide services to a number of different clients or customers at any time.
- You have declared to HMRC that the fees you receive for assignment completed are outside IR35.
Frequently Asked Questions
Q: Do I have to wait for 12 weeks before I am entitled to use the permanent staff’s car park?
A: No, if the car park is available to comparable permanent employees of the end-user client, then you are entitled to use this car park from the first day of your assignment.
Q: I only work one day per week on assignment, how many days do I have to work on assignment to reach my qualifying period?
A: You have to work 12 days. Your one day a week is considered a whole week’s work for the purposes of the qualifying period.
Q: I work for the same company, doing the same job via a number of different recruitment agencies, do I have a different qualifying period for with each agency?
A: No, you only have one qualifying period for each different role at each end-user client. So all the assignments, through different recruitment firms will all add towards the same qualifying period, as long as you continue to do the same role.
Q: Do I have to keep track of my qualifying period?
A: No, the recruitment firm will keep track of your qualifying period for each different role you do. However, it will help the recruitment firm calculate your qualifying period correctly if you give them full information about your working history whenever they ask for it.
Q: I have been working on assignment for the same client for 6 months, will I be entitled to equal treatment rights from 1st October, 2011?
A: No, you can only accrue your qualifying period from 1st October, 2011, any work done prior to this date will not count. You will, therefore, have to wait until you’ve completed the 12 week qualifying period.
Q: Will I become an employee of the recruitment agency and/or the client once I receive equal pay?
A: No, you will remain a temporary worker, working via a recruitment firm. The AWR has created a new employment status of “Agency Worker”.
Q: I currently earn more than the permanent employees around me, will my pay be reduced to their level once I have completed the qualifying period?
A: No, there is no obligation to reduce pay under the AWR.
Q: The permanent employees where I work get an annual pay increase, will I also be entitled to this?
A: Yes, the AWR requires equal treatment in terms of pay after the qualifying period has been completed. So, if the comparable permanent employees get a pay rise, then this must be reflected in your pay as well.
Q: If I don’t get equal pay after 12 weeks, who should I complain to?
A: Speak to your recruitment firm, it is probably a calculation error in the qualifying period.
Q: Do I have to take paid annual leave to attend ante-natal appointments?
A: No, once you have completed your qualifying period you are entitled to paid time off work to attend ante-natal appointments?
Q: Can the recruitment firm force me to arrange my ante-natal appointments outside of my normal working hours?
A: The recruitment firm can request that you try wherever possible to limit the disruption to the end-user client, by arranging appointments for the beginning or the end of the day. However, you have a right, once you have completed your qualifying period, to paid time off for ante-natal appointments (not including the first appointment of your pregnancy).
Q: If I am off sick during an assignment, will my qualifying period reset to zero when I return to the assignment?
A: As long as you return to the same, or similar role, your qualifying period will continue as if you had not been away. Therefore, any weeks worked before the absence will be carried forward.
Q: If I return to the same assignment after a break of 5 weeks and 6 days, will my qualifying period reset to zero?
A: No, to reset your qualifying period the break between the assignments has to be more than six weeks (or 42 days).
Q: How are the qualifying period weeks calculated – are they based on calendar weeks?
A: The Government’s guidance suggests that for the purposes of calculating the qualifying period a calendar week is a seven day period starting on the first day of the assignment. Therefore, if your assignment starts on a Tuesday, your qualifying period week will end on the following Monday.
Q: The end-user client where I am on assignment provides its permanent staff with subsidised gym membership. This has not been provided to me as a day one right, is this correct?
A: Yes, subsidised gym membership, where the gym is not funded or staffed by the client would not normally be considered a day one right. The facilities included within the scope of the Regulations include such as the canteen, child care, transport services, which are usually on site, and usually funded or provided directly by the client.