FAQs - Client Seminar

Following Randstad’s successful AWR seminar the Randstad AWR project team has compiled the answers to some of their clients' burning questions.

If you've not got time to read these FAQs in full, then why not download a copy here, or for more Randstad factsheets click here.


1. If assessments are used as a method of determining the applicable pay band, how does this apply to a temporary worker?
The key point is to treat temporary workers in the same way as permanent recruits, so if the level of pay is linked to a grade, experience or assessment outcome/result then this would need to be used as the basis for permanent and temporary workers.

2. Does parity of pay include pay rises?
Regulation 6 (2) defines pay as follows:

“For the purposes of paragraph (1)(a), “pay” means any sums payable to a worker of the hirer in connection with the worker’s employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under contract or otherwise, but excluding any payments or rewards within paragraph (3)”.

If, as standard, across the company all employees are contractually entitled to a pay rise at particular times it is possible that this could also apply to a worker. (See regulation 5 (2) (a) which provides that equal treatment extends to terms which are “ordinarily included in the contracts of employees of the hirer”)

The following items are not included (see Regulation 6 (3)):

“any payment by way of occupational sick pay; any payment by way of a pension, allowance or gratuity in connection with the worker’s retirement or as compensation for loss of office; any payment in respect of maternity, paternity or adoption leave; any payment referable to the worker’s redundancy;

any payment or reward made pursuant to a financial participation scheme; any bonus, incentive payment or reward which is not directly attributable to the amount or quality of the work done by a worker, and which is given to a worker for a reason other than the amount or quality of work done such as to encourage the worker’s loyalty or to reward the worker’s long-term service;

any payment for time off under Part 6 of the 1996 Act or section 169 of the Trade Union and Labour Relations (Consolidation) Act 1992(1) (payment for time off for carrying out trade union duties etc);

a guarantee payment under section 28 of the 1996 Act; any payment by way of an advance under an agreement for a loan or by way of an advance of pay (but without prejudice to the application of section 13 of the 1996 Act to any deduction made from the worker’s wages in respect of any such advance);

any payment in respect of expenses incurred by the worker in carrying out the employment; and any payment to the worker otherwise than in that person’s capacity as a worker.”

3. When will we know what is included and excluded in the Regulations?
It is expected that the government will issue guidance on such matters in early 2011. When this is issued Randstad will contact its clients to discuss any changes or clarifications.

4. Are benefits in kind included in the Regulations?
No. Company car allowance and health insurance are not included within the meaning of equal treatment. The government has not extended the principle of equal treatment to pay related rights which are genuinely linked to longer term reward and retention. Please see the definition of “pay” provided at question 2.

5. Is provision of occupational health included in the Regulations?
No.

6. When redeploying redundant workers and roles are available – would day one (i.e. access to vacancies) apply?
Yes. Day one rights apply whenever a worker commences an assignment with a hirer.

7. Is overtime included in the Regulations?
Overtime should be offered to agency workers if it is offered to all permanent employees of the hirer. Payment for overtime hours is included in the equal treatment principle as is payment for unsociable hour premiums and shift allowances.

8. Are the sum of annual pay and benefits pro rated to an hourly value to prove parity?
A hirer will need to provide the agency with details of the salary (whether paid on an annual, monthly, weekly, daily or other basis) of the comparator/ permanent employee within their organisation doing the same job and the agency will calculate how much the worker needs to be paid on a weekly basis so that they are on equal pay with the comparator.

9. Does AWR include sole traders? Umbrella companies?
The Regulations only exclude those who are genuinely employed on their own account (self-employed/sole traders). Workers providing services through an umbrella company or personal service company or other intermediaries and who are not self-employed will be caught by the Regulations.

10. Who does the worker bring a case against? What is the process? Who is ultimately accountable?
Any entity within the chain of relationships (usually the agency or umbrella company and the hirer) can be accountable for a breach of the Regulations. All claims based on access to facilities (day one rights) will be brought against the hirer as the agency will have no control over these matters.

The agency will be responsible for any breach of rights relating to basic employment and working conditions to the extent that the agency is responsible for the breach (Regulation 14 (1)). The agency will have a defence to such a claim if it can show that it took “reasonable steps” to obtain the relevant information from the hirer and then acted reasonably in its determination of the basic employment and working conditions.

The hirer is responsible for any breach in relation to basic employment and working conditions, to the extent that it is responsible for the infringement having regard to the steps that it took to enable the agency to provide the relevant information to the worker.

This is not joint and several liability. The Tribunal may choose to join the hirer to the proceedings if it believes that the hirer is also culpable for the breach or release the agency from the claim altogether. Claims for breaches of the regulations can be made by the worker in an employment tribunal provided they do so within 30 days of the breach.

11. If you take staff on for a 12-week period and this is the business standard, would this be seen as avoidance of the Regulations?
This would be an unusual circumstance. However, if this term is incorporated as standard (see question 3 regarding Regulation 5 (2)) into all employee contracts and it is genuinely the case that after 12 weeks these employees no longer provide their services to the hirer and this has been a long standing practice with reasonable business justifications, then this is unlikely to be seen as an avoidance strategy.

The anti-avoidance provisions are aimed at circumstances such as agencies and hirers repeatedly moving temporary workers between assignments to avoid the worker accruing 12 weeks on an assignment.

12. Are annualised hours considered part of down time – is there a minimum number of hours?
This was expected to be, and indeed was, cleared up on release of the guidance notes (please download the guidance here).

13. If you use a sub-contractor through an umbrella company are they part of AWR?
If the sub-contractor is genuinely self-employed, then no. Workers who are provided through an umbrella company will otherwise be caught by the Regulations.

14. Could we take people on a zero hours contract and when on downtime would they receive pay?
If the individual is directly employed by the hirer then they are not caught by the Regulations. If the workers are engaged on this type of contract and supplied via an agency, the Regulations will apply in terms of the principle of equal treatment. Workers would not receive pay between assignments as this requirement only applies to derogation contracts (which require agencies to guarantee/pay the worker at least one hour per week).

15. On a zero hours contract, if you haven’t used them for 12 weeks does it expire and need to be re-issued?
Please see answer 14.

A zero hours contract is a contract of employment which might be drafted to last for a fixed term or for the duration of a project, part time or other ad hoc basis. More often, as is the case with Randstad’s zero hour contract, the term is indefinite subject to the employee’s and the employer’s right to terminate on written notice. The agency (or employer) does not guarantee any work to the worker.

As such, there is no need to re-issue this contract at the end of an assignment. The agency will remain the employer of the worker (unless it gives notice to terminate) and will look for alternative assignments in the usual way.

16. Does statutory minimum notice period apply to AWR for temporary workers?
The Agency Workers Regulations do not affect the Employment Rights Act 1996 and so the statutory requirement to give notice to terminate employment still applies. If the worker is not an employee but is engaged on a contract for services then it is usual that the worker and the agency are able to terminate the relationship at any time without notice.

17. Is the notice period included or excluded for AWR after 12 weeks?
Please see answer 16.

18. What about if we had project work for 11 week blocks that went into 12 weeks, does parity apply?The right to equal treatment does not apply until a worker has undertaken the same role, whether on one or more assignments, with the same hirer for 12 continuous calendar weeks (Regulation 7(2)). Any week during the whole or part of which a worker is engaged on an assignment is counted as a calendar week (Regulation 7(4)).

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