On October 1st 2011 the Agency Workers Regulation will come into effect in the UK. This regulation is being implemented to ensure that agency workers have the same relevant working and employment conditions as a comparable permanent worker at the same organisation.

The AWR regulation has evolved from the EU Temporary Workers Directive 2008 which gives temporary workers the right to the same relevant pay and working conditions as those provided to the hirer's own staff. This means an agency worker will only be entitled to equal treatment once s/he has completed 12 weeks' of service in the same role with the same hirer (NB there are two exceptions, relating to access to the client's facilities and information on vacancies at the client which apply from day one of an assignment). The Regulations also give pregnant agency workers new rights. The regulations will not apply to those workers that are genuinely self employed.

The regulations stipulate that an agency worker is an individual supplied by a temporary work agency to work under the supervision and direction of the hiring client. A worker can be an agency worker even if he works through an intermediary e.g. Umbrella company. Agency workers CAN NOT opt out of AWR. Genuine self employed persons are excluded from AWR.

• The agency worker is not entitled to equal treatment until s/he has completed the 12 week qualifying period. The agency worker must work in the same role with the hirer for 12 calendar weeks (any week during which the workers works is counted). If there is a break of 6 weeks or more then the qualifying period starts again. It is the Agency's responsibility to track the 12 weeks.

There are a number of important exceptions which do not 'break the clock'.

• Sick leave
• Holiday
• The first 26 weeks of maternity leave
• Short but regular repeated assignments could accrue equal treatment rights with a number of different hirers at the same time
• If the agency worker has worked on the same assignment and client but through a different agency the 12 week qualifying period will still apply

An agency worker is entitled to the same "relevant terms and conditions" as a comparable employee at the client.

An employee is a comparable employee if they are both: -

1. Engaged in the same or broadly similar work having regard, to whether they have a similar level of qualification and skills.
2. The comparable employee works at the same establishment as the agency worker.

Once the comparator is established, the priority is to establish the correct rate of pay and other working conditions which the agency worker is entitled (and to be able to explain how this is worked out).

Where there are no formal pay bands we need to establish the salary the hirer would have paid if they were recruiting that agency worker directly.

• Pay including
• Basic pay, overtime and shift premium
• Certain bonuses and commission payments
• Holiday pay

• Night work policies
• Rest periods
• Rest breaks
• Annual leave
• The right to access collective facilities i.e. Canteens, childcare facilities, car parks
• The right to be informed by the client of any relevant posts
• Pregnant workers have the right to be paid when attending ante-natal appointments
• Pregnant workers must be offered suitable alternative work. If this does not happen the agency worker should be paid for the duration that it is expected the assignment would last

• Pay excludes
• Pension
• Occupational sick pay
• Maternity, paternity and adoption pay
• Enhanced redundancy payments
• Financial participation schemes
• Bonuses awarded

The agency worker can bring an employment tribunal claim for an alleged breach of AWR. The tribunal can award compensation of not less than two weeks pay (there is no maximum award). Also any other expenses or losses incurred.

The itemps solution has been developed with full compliance to AWR. Clients can rest assured that we supply a fully compliant system – contact us to find out how.