Industry Information

The latest information from Dutton Recruitment.

Industry Information

The Agency Worker Regulations 2010 came into force on 1st October 2011.

The Regulations give “agency workers” the right to the same or no less favourable basic working and employment conditions they would receive if they were directly employed by the client (end user) to do the same job.

 The Regulations apply to the following:-

  • Individuals who work for and are paid directly PAYE by an agency.
  • Individuals who work for and are paid via a payroll company, where they are engaged as either an employee or a worker. 

The Regulations do not apply to the following:-

  • Individuals who have been placed on a permanent contract by an agency.
  • Individuals who have their own limited company.  These are out of scope as there is a business to business relationship between the agency and the limited company and so the responsibility for AWR compliance transfers to the owner of the limited company.
  • Individuals who are genuinely self-employed and are neither an employee nor a worker of the agency or payroll company that engages them.

Rights Under the Regulations

For an Agency Worker to qualify for any rights, we must firstly establish if there is a comparable worker, which means:-

A worker employed directly by the Client doing the same or broadly similar job to the agency worker.

If there is no comparable worker, then the Regulations do not apply. 

Please note - in most cases this is acceptable, however, it is important to note that Tribunals will look at the definition of a comparator very widely and may well look beyond where there is no single person who directly works in the same job.  For example, Tribunals can assess the client’s structure, pay scales and any collective agreements that are in place to look to see where a particular type of worker or level of worker fits in the scale and then assess whether the agency worker is equal to this.

Rights from Day One

  • Access to facilities and amenities that the Client currently provides to its own workers. 
    • Canteen / Food & Drinks Machines
    • Workplace Crèche
    • Toilets / Shower Facilities
    • Staff Break Room
    • Mother & Baby Room
    • Prayer Room
    • Car Parking
  • The right to be informed by the Client of any vacancies which arise in the company.

These may include:-

Rights after Twelve Weeks in the Same Job
  • Comparative pay rate – including performance related pay and bonuses. *
  • Duration of working time – e.g., if working week is limited to 48 hours.
  • Opportunity to work different shifts, i.e., nights and different days.
  • Rest periods / breaks – the number of and length of breaks in a day.  Please note - a worker is entitled to the same rest periods / breaks, but is not entitled to receive payment for them.
  • Annual leave.
  • Paid time off for antenatal appointments for pregnant workers.
  • Automatic pension enrolment.

* Please note - for an agency worker to be receiving comparative pay, they must be receiving the same ‘take home’ pay.  This is not just necessarily the same hourly rate, for example, if a worker is paid via an umbrella scheme, and Employer’s NI and the payroll company fee is also taken into account before the ‘take home’ pay is calculated. 

Calculating the 12 Week Qualifying Period (The Qualifying Clock)

The 12 weeks are calculated on calendar weeks, therefore, if a worker only works a couple of hours a week, this still counts as a qualifying week.

The worker also does not have to have worked for the same agency throughout the 12-week qualifying period, so it is important to find out if the worker has worked for the client at any point during the previous 12 weeks.

The Qualifying Clock will only be paused for the following reasons:-

  • The worker takes paid annual leave.
  • There is a break for any reason of not more than 6 calendar weeks.
  • There are any breaks due to pregnancy, childbirth, maternity leave, paternity leave or adoption leave.
  • The worker is on sick leave for up to 28 weeks.
  • The worker is on jury service for up to 28 weeks.

The Qualifying Clock will stop if the following happens:-

  • The worker begins a new contract with a new client.
  • The workers begins a substantially different role with the same client.
  • There is a break of more than 6 weeks which is not covered by the reasons listed above.
Claims for Non-Compliance

For any claims for non-compliance to be eligible to be heard by a Tribunal, they need to be brought by the worker within 3 months of the date the infringement is claimed to have occurred.  So for example, in respect of unequal pay, it has to be within 3 months of the last pay date.

Penalties for not complying with these regulations can include not only the repayment of underpaid salaries and benefits, but also an additional penalty of £5,000 per case.  Workers can also be awarded an additional payment of up to £5,000 if it is found that anti-avoidance techniques have been used by the agency to deprive an agency worker of their rights.  An example of this could be,

where a worker’s contract is ended before completion of the 12-week qualifying period and then they are placed back on the same assignment after the 6-week break period has passed, resulting in their qualifying clock being reset.

The agency must make all attempts possible to obtain the comparative information from the client.  If the client fails to respond, then a record will be kept of the agency’s request for information, should any claims or issues arise.

Checklist of Comparator Information to be Requested
  • Day One Rights
  • Pay Rate
  • Holiday Entitlement
  • Bonuses / Commissions
  • Breaks (number per day and length)
  • Weekly hours worked
  • Has the worker worked for the client before?
  • If so, how long ago was this and how long for?
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