What are the Agency Workers Regulations?
The Agency Workers Regulations 2010 (AWR) are derived from European legislation and are designed to give temporary agency workers parity in the basic pay and employment conditions they would be entitled to had they been recruited directly by the hirer to do the same job.
Visiting Lecturers are now entitled to access vacancy information and collective facilities as if he or she had been hired directly to do the same job.
The Department for Business Innovation & Skills have produced a comprehensive guide to the regulations which you can download by clicking here.
You can also view the full legislation by clicking here.
What rights will agency workers have effective 1st October 2011?
From Day 1 agency workers will be entitled to access to vacancy information and collective facilities such as staff canteens, childcare facilities and transport services.
After a qualifying period of 12 weeks agency workers will have the right to the same basic employment and working conditions, such as pay and holidays. They should be given the same basic rights as if they had been recruited directly to the job by the hirer.
The Regulations exclude sick pay, maternity/paternity pay, redundancy, notice pay, payments related to pension entitlement, and bonuses not based on individual performance.
What are the college’s obligations in supplying comparator data to the agency?
The requirement to provide ‘equal treatment’ after week 12 means that the hirer should treat the agency worker as if he or she had been recruited directly to do the same job. Equal treatment is not required for all terms and conditions that person would have received if recruited directly – it covers basic pay and employment conditions.
The guidance states that it is not necessary to look for a comparator as it is quite possible to identify the appropriate ‘basic working and employment conditions’ without one. However where a comparator has been identified then the hirer will be deemed to have complied with the Regulations. A comparator needs to be engaged in broadly similar work, but ‘account can be taken of their skills and qualifications as this may justify a higher level of pay for the comparator’. A comparator must work at a hirer’s workplace and be currently employed.
What is included in the Day 1 Rights?
Access to Vacancy Information.
Information can be provided via the hirer’s systems or via the agency.
Access to vacancies will not apply in the context of a genuine ‘headcount Freeze’ where posts are ring fenced for redeployment purposes or Redeployment to prevent a redundancy situation.
Access to Facilities
This will be on the same basis as directly hired staff. Agency workers will be entitled to use collective facilities, such as canteens and childcare facilities. Agency workers will not get special accelerated access to staff facilities; they will be subject to the same qualifying criteria such as waiting lists. Also excluded is access to off-site facilities and amenities which are not provided by the hirer, such as subsidised access to an off-site gym or subsidised meals in a canteen.
Examples of Day 1 Rights (this list is not exhaustive)
Transport / Parking – Excludes company car allowance or season ticket loans
Childcare / Workplace crèche – Excluded if provided by salary sacrifice
Gym Membership – only if on site and not provided by a 3rd party
Staff common room / showers/ prayer room
How should colleges communicate Day 1 Rights?
Day 1 Rights are the responsibility of the hirer and the guidance leaves it up to hirers to decide how they would want to communicate the information to their agency workers.
Protocol will display full details of Day 1 entitlements as agreed with each college on each VL Assignment Confirmation Advice notice.
What terms are agency workers entitled to after the 12 week qualifying period?
After 12 weeks in the same job with the same hirer, an agency worker is entitled to have the same basic terms and conditions of employment as if they had been employed directly by the hirer. They are:
Key elements of pay
Paid time off for ante-natal appointments
How will an individual agency worker know what they are entitled to after the qualifying 12 week period?
Full details will be displayed on their Assignment Confirmation Advice detailing Day 1 and Week 13 fee rates.
Will this have any implications for our current booking process with Protocol?
No. You will continue to book via the On-Line system. Total costs for the assignment will be quoted at the time of booking subject to final confirmation of suitable candidate selected by Protocol. Once final verification of AWR criteria against selected candidates is completed final costs will be displayed.
When will the AWR details be displayed on contracts which have been booked prior to 1st October?
From the 1st October Protocol will notify you if any amendment is required to existing bookings. In the week prior to the 1st October we will be communicating with the Visiting Lecturers to inform them that they will be receiving new Assignment Confirmation Advice from the 1st of October detailing any changes as regards to the AWR.
Where college employees are entitled to annual leave in excess of the statutory minimum, how will this be applied to the agency worker following week 12?
In relation to paid holiday leave, all workers have a statutory entitlement to 5.6 weeks per year (based on their working pattern – somebody working five days a week is entitled to 5.6 x 5 = 28 days) which can include bank and public holidays.
If an agency worker works 12 weeks with the same hirer, after the 12 weeks their holiday pay should be calculated on the same basis as a permanent employee doing the same job engaged directly by the hirer – calculated on a pro-rated basis. The liability to pay holiday pay will be recovered by the agency as part of their fees from the hirer.
What penalties are included in the AWR?
Agency workers are entitled to information relating to equal treatment should they believe their entitlements under the Regulations have not been met. Agency workers are encouraged to speak to their agency in the first instance to resolve any issues. The regulations lay down a timeframe within which information requests should be responded to.
Complaints which have not been resolved informally will be handled by employment tribunals. The agency worker would be compensated for any loss of earnings related to their entitlements under the Regulations. There is no maximum award but there is a minimum award of two weeks of pay regardless of the value of the loss.
Where the tribunal finds that a pattern of bookings are designed to deprive a worker of their rights they may award a penalty of up to £5,000 against the hirer or the agency (or split between them).
Why are individuals contracted by Protocol Assessors 'out of scope'?
People contracted by Protocol Assessors are providing Examining and Assessments Services to the college. As such Protocol Assessors are contracted to the college to provide an Examination or Assessment Service, not an individual to deliver teaching.
What is a comparable employee?
A comparable employee is an individual who is engaged in broadly similar work, but account can be taken of their skills and qualifications as this may justify a higher level of pay.
They must work at the same workplace or, if there is no comparable employee in the same workplace, in another of the hirer’s workplaces. They must be currently employed by the college.
Where there is no comparable employee you are still entitled to matched holiday and day 1 rights.
What AWR doesn’t cover
Loyalty schemes or long term-service awards
Any payment relating to maternity, paternity or adoption leave
Salary sacrifice schemes
How will I know what I am entitled to?
Details of pay and conditions will be displayed on your Assignment Confirmation Advice slips, including any AWR amendments.
In the event that you receive better conditions than a comparable employee (e.g. pay), the regulations would not require your pay to be brought in line with that of comparable employees.
The 12 week qualifying period
Working out the AWR qualifying period
The qualifying period is triggered when a temporary candidate works in the same role with the same hirer (who provides supervision and direction of those temporary staff) for a period of 12 weeks.
A week comprises of 7 days starting with the first day of the assignment, regardless of how many days or hours worked (minimum of 1 hour per week).
The 12 week rule still applies if you work in the same role at the College but through a different agency, you will still qualify. You must inform agencies and Colleges when this happens.
Service prior to 1st October 2011 does not count.
The AWR Qualifying Clock
The regulations provide a number of circumstances where breaks in the assignment prevent you from reaching the 12 week period.
Think of the qualifying period as a clock. Gaps in assignments of over 6 weeks will mean the clock is reset to 0, paused or starts again depending on the reason for the break.
Reasons the AWR clock resets to zero
A break between assignments, with the same College and role, of 6 weeks or more (excludes annual leave, maternity leave).
For the role to be classed as substantively different there must be a distinction in:
The teaching of different subjects is not classed as a role change.
Reasons the clock is paused
The clock will be paused if you have a break:
For less than 6 weeks
Up to 28 weeks if you are off sick
Up to 28 weeks for jury service
Un/planned shutdown of the workplace e.g. snow days or summer holidays
Strike or industrial action
Breaks where the clock continues to tick
Pregnancy, childbirth or maternity up to 26 weeks after childbirth
Paternity or maternity leave
Is there anything that I need to do?
It is advisable that you keep a diary of the dates and roles you have undertaken in a College, no matter what agency it was with. This will allow you to count up the qualifying period. You must freely provide this information to your agencies on a regular basis.