Agency Workers Directive – Panic or Plan Sensibly Part 1

For those of you who have been looking for a quick and easy summary of the Agency Workers Directive, look no further! This article brings together all the basics to give you a better understanding of the . And if you’re wondering how to prepare for when the regulations comes into force in October 2011, you’ll have to read the second part of this post. This is for those of you who are currently as confused as I was before I spoke to the right people!

So on to the basics of the AWR…

Objectives of the Agency Workers Regulations

The AWR is designed to give temporary agency workers equal treatment.  Equal treatment means ensuring parity in pay and employment conditions, but also to give agency workers better access to training, permanent jobs and on-site facilities as if they were a permanent member of staff.

Who qualifies under the regulations?

Every agency worker who is engaged for 12 weeks’ of service, or more, with the same hirer, in the same role, will qualify if they are not in business on their own account. The Department for Innovation and Skills (BIS) has indicated that genuinely self-employed individuals will fall outside of the scope of the AWR, but the actual definition is yet to be clarified.

They can be full time or part time during this 12 week period and a new qualifying period will only begin if a new assignment with the same hirer is substantively different, or if there is a break of more than six weeks between assignments in the same role.

Will agency workers be entitled to the same rights and benefits of employees?

The new regulations will not change the employment status of agency workers. This means they will still not have the right to claim unfair dismissal, redundancy pay or maternity/paternity leave. Nor will agency workers be entitled to the same benefits that permanent employees enjoy, such as occupational sick pay, company pension schemes, financial participation schemes and bonus payments based upon organisational or company performance. These are considered a reflection of the long term relationship between an employee and an employer.

What will the agency worker be entitled to after 12 weeks?

Agency workers will be entitled to the same basic pay and working conditions as direct workers. This includes:

  • basic hourly/daily rate
  • overtime and shift allowances, unsocial hours premiums, payments for difficult or dangerous duties and lunch vouchers
  • bonuses which are directly attributable to the quality and quantity of work completed
  • rest breaks and annual leave allowance
  • paid time off for ante natal care
  • right to suitable work if pregnant, or paid time off
  • access to training

There are some benefits which agency workers will be entitled to from day one of an assignment.  This includes:

  • agency workers must be made aware of vacancies that arise in the organisation in which they are working
  • agency workers will also be entitled to access a number of collective facilities including:
    • crèche and childcare facilities
    • canteen facilities
    • the provision of transport services (but access to these can be refused if there are ‘objective grounds’ for doing so)

How will equal treatment be established?

In many cases there will be a ‘flesh and blood’ comparator to establish parity in pay and working conditions (e.g. a worker recruited directly by the employer). Where there is a like for like, ‘flesh and blood’ comparator, the hirer and the agency will be deemed compliant with the regulations.

If a ‘flesh and blood’ comparator cannot be found, then there may be an identifiable pay scale or a starting rate which could be used as a reference point. Sometimes the agency worker may be a unique hire and there may be no easily identifiable comparator, pay scales or starting rates. In this circumstance parity does not need to be established. However, in all scenarios agency workers will be entitled to benefits which ‘apply generally’ in the workplace. Benefits outlined in company handbooks, employment contracts and collective agreements will be taken into account by the courts in determining parity in pay and working conditions.

Who is liable for establishing equal treatment?

The recruitment agency will be liable for any breach of a right in relation to equal treatment for which they are responsible. However, they will have a defence if they have taken ‘reasonable steps’ to obtain the necessary information from the hirer. This will mean the hirer and the agency will need to work together closely to share appropriate information to ensure the agency worker is receiving equal treatment.

What if an agency worker is paid higher than directly recruited workers?

If the agency workers are on a higher rate of pay, then that is fine. The AWR’s purpose is to ensure that agency workers are not treated detrimentally in comparison to those employed directly. Therefore, agency workers’ pay rates do not need to be lowered to bring them in line with permanent staff or direct hires.

So, start thinking about how the above will affect your organisation…

  • Where do you use agency workers in your organisation?
  • Do they currently get the same pay and working conditions as your direct employed workers?( highlight the ones that don’t)
  • How will you make vacancies available to your agency workers?
  • Do you have the collective facilities that need to be made available?

If you have any questions, please feel to post them in the comments box and I will do my best to answer them.
To hear my view on what we should be doing right now to equip ourselves for the AWR, read part two of this blog post at