FAQs - Candidates

This set of FAQs is intended to help explain what the Agency Worker Regulations will mean for Randstad’s flex-associates/workers. The Regulations mean that agency workers will be treated as if they are a direct recruit of the hirer/client in terms of pay and employment conditions (subject to the exceptions described below).

If you would like more information, the full Regulations can be found here and a more detailed explanation can be found on the BIS website.

Not got time to read the FAQs in full? Then why not download a copy here.

1. What are the Agency Worker Regulations (“the AWR”)?
Known as the “the equal treatment principle”, the Regulations are concerned with giving agency workers the same basic employment and working conditions they would have enjoyed had they been directly employed by the end user. Some equal treatment rights will apply from day one of an assignment (these are known as “day one rights”, see question 9).

2. When will the AWR come into force?
1st October 2011

3. Who do the Regulations apply to?
The Regulations apply to all agency workers including those employed via umbrella companies or other intermediaries. Workers who are genuinely employed on their own account are excluded (e.g self-employed or working through a corporate vehicle).

4. What does equal treatment cover?
Equal treatment will apply to basic working and employment conditions including:

• duration of working time
• overtime
• breaks
• rest periods
• night work
• holidays
• public holidays pay (see questions 5 and 6)
• terms and conditions ordinarily included in employee contracts (for example, collective agreements, pay scales, company handbooks)
• other matters of custom and practice in the workplace concerned (for example, access to facilities)

These conditions should be the same for an agency worker as for employees directly recruited by the hirer to do the same role.

5. What does equal treatment in relation to “pay” include?
Equal treatment in relation to pay includes basic pay plus other contractual entitlements directly linked to the work undertaken by the agency worker whilst on assignment, i.e.:

• payment for overtime
• shift allowances
• unsocial hour premiums
• bonuses that are directly linked to the quality or quantity of work done by an agency worker

6. What is excluded from the meaning of “pay”?
Aspects of pay that are provided to employees in recognition of the long-term relationship between the employer and the employee, such as:

• profit sharing schemes
• occupational pension contributions
• occupational sick pay
• redundancy pay
• maternity pay

7. How is the 12-week qualifying period calculated?
It is 12 calendar weeks regardless of working pattern (full-time or part-time). A new qualifying period will begin only if a new assignment with the same employer is substantively different OR if there is a break of more than six weeks between assignments in the same role.

There is no break in an assignment when the client’s workplace is effectively closed (i.e. during school holidays or industrial action). For agency workers taking time off following childbirth, the worker will continue to accrue her qualifying period whilst off work. If the worker takes off more than 26 weeks the assignment will be broken and she will need to accumulate 12 weeks in a new job to qualify for equal treatment.

Qualifying weeks can also be brought forward if there is a break in assignment caused by: sickness or injury (provided the worker can evidence this to the agency); maternity, adoption or paternity leave and jury service. Any time worked before 1st October 2011 will not count towards the qualifying period for equal treatment. Workers on assignment on 1st October 2011 will qualify for day one rights. (See question 9)

8. How do we know if a role is substantively different from a previous one so that the qualifying period begins again?
There will be further guidance issued from the government on this point. The guidance is likely to suggest that the following factors should be considered:

• is there a change in reporting lines?
• is the location of the assignment different?
• are the skills and attributes required for the role different?

If a new role is substantively different, workers should be provided with a written description of the new work they will be required to undertake in a new role.

9. What are “day one rights”?
Some aspects of equal treatment apply before the 12-week qualifying period i.e. from day one of the worker’s assignment. These are:

• access to permanent employment with the client (i.e. vacancy lists) except where the client is re-structuring their business as part of an internal re-organisation. This right may not apply in the event that there is a genuine freeze on recruitment within the client’s organisation.
• access to facilities (i.e. canteen, childcare, transport). 

Hirers will not have to provide access to day one rights provided that they are able to show objective justification for not doing so. Season ticket loans or car allowances are not included.

10. Which employee within the client’s organisation should an agency worker be compared to?
The simplest approach is to compare the position of the agency worker with that of a permanent employee doing the same or broadly similar work.

If the client’s organisation has pay scales or pay policies, it should be clear what the worker would have been paid if they had been recruited directly, taking account of skills, qualifications, expertise and experience. Or, where there are no pay scales, consider: what is the “going rate” in the client’s organisation for that job?

If the client identifies a flesh and blood comparator who is a permanent worker within their organisation, and the agency worker receives the same treatment as that worker, then the equal treatment principle will be deemed to be complied with.

11. How is equal treatment on pay established where there are no permanent employees within the client’s business to compare an agency worker to?
National rates of pay for that role may be useful guidelines. The rate of pay will remain the same during and after the qualifying period of 12 weeks.

12. How is equal treatment on pay established where permanent employees negotiate their own individual rate of pay and rates vary considerably?
If there is no established custom and practice with regards to pay (and the client and the agency would need to expressly agree that this was the case), the rate is agreed in accordance with usual practices (national pay rates). The rate would remain the same after 12 weeks.

13. Are agency workers entitled to ask for disclosure of information obtained from the client about their pay scales (and any other equal treatment information)?
Yes. But only if this is requested after the 12-week qualifying period has elapsed. The agency (and the client) will have 28 days to respond to the worker’s request from the date it is received.

14. What is the effect of the AWR on holiday pay?
All workers are entitled to a minimum of 5.6 weeks (28 working days) annual leave. The AWR will allow payment to be made in lieu of holiday accrued with different clients, which is in excess of the minimum (so that the worker doesn’t have to actually take the extra time off).

Agencies are also permitted to role any holiday entitlement which is in excess of the statutory minimum into the hourly or daily pay rate.

15. Do assignments with other agencies with the same hirer count towards the 12-week qualifying period?
Yes – agency workers will be asked about their recent employment history to ascertain whether they are nearing the qualifying period for equal treatment. Workers should notify their agency of previous clients they have been placed with.

16. Are there any exceptions to the AWR rules?
Yes, the two main ones are:

• the “derogation contract”: if the agency worker is engaged on a permanent contract of employment with the agency AND the agency pays the agency worker 50% of their usual hourly rate (provided this is not below the National Minimum Wage) whilst they are not working but are available to work, the agency worker will not be entitled to equal treatment in relation to pay.
• the managed service: this involves the complete outsourcing of a proportion of the client’s business, for example, the “packing” section of a manufacturing line.

The rules relating to the above are complex and Randstad awaits more guidance from the government as to how these options would operate in practice.

17. Is it possible for agencies or workers to opt out of the Regulations?
No. Workers are entitled to complain to an employment tribunal in the event of a breach of the AWR, however they must do so within 30 days of the breach.

18. Who is responsible for a breach of the Regulations, the client, the agency or both?
Any party in the chain of relationships can be liable to the extent that they are to blame for the breach. An agency has the defence to a claim by showing that they have taken “reasonable steps” to obtain the necessary information from the client.

The client will be liable for access to employment and facility claims as the agency has no control over these points.

For example, an access to employment claim would be based on the worker not being given access to internal vacancy listings. A facility claim could be based on a worker not being granted access to the client’s crèche facility.

19. What have Major Players and Randstad done to prepare for the introduction of the AWR? Randstad created an AWR Project Group which included representatives from every division of the business. This AWR Group ran regular AWR training sessions to ensure that all Randstad employees were familiar with the Regulations before they come into force in October 2011, so Randstad are ahead of the game!

Disclaimer