Explained

Discrimination against agency workers in the workplace is being tackled by the Agency Worker Regulations (also known as AWR) which came in to force in 2011 and was updated in 2019. This includes (but not limited to) Pay rates, holiday allowances and working conditions. The regulations give agency workers the following rights:

From Day one

• Full information with regards to vacancies that become available within the end-clients workplace. This includes the opportunity to apply for the role. 
• Employee facilities must become accessible for them such as the canteen, staff rooms, toilets, parking etc.

After 12 weeks with the same end-client (also known as the ‘qualifying period’)

• Pregnancy Rights
• Equal pay, holiday allowance and working time

Defining an agency worker 

An agency worker, as defined by AWR legislation, is someone who “is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and

(b) has a contract with the temporary work agency which is—

(i) a contract of employment with the agency, or

(ii) any other contract to perform work and services personally for the agency.”

An agency worker has certain rights over two specific time frames.

Therefore, this does not apply to those seeking permanent employment with the client or genuine self-employed contractors.

Agencies obligations

It is vital for all agencies supply temporary contractors to end-clients, to ensure day one rights are facilitated.

You are responsible for obtaining certain information such as typical pay and working conditions for the permanent employees of the end-client in similar roles as soon as you receive confirmation that the role you will be placing your candidate into is expected to exceed 12 weeks in duration and it is the end-clients responsibility to ensure this information is provided accurately.

By doing this you are ensuring your candidate is going to be treated fairly and is at no disadvantage by accepting this role through yourselves instead of contacting the end-client directly, after the 12-week qualifying period.

How was AWR amended in 2019?

One of the changes the Government’s Good Work Plan made was abolishing the ‘Swedish derogation’ from the Agency Worker Regulations 2010. 

The Swedish derogation is a special type of employment contracts and is short hand for ‘pay between assignments’ and meant that workers engaged on these contracts with an agency gave up the right to parity in return for a guarantee to receive a certain amount of pay between assignments. This arrangement was mostly popular with blue collar workers e.g. retail, manufacturing etc. It was estimated that around 8-10% of UK agency workers were on Swedish derogation contracts (about 130,000 people). 

The reason this was abolished was to encourage people to take on permanent employment, so its removal gave these employees greater certainty and security. 

The Agency Worker (Amendment) Regulations 2019 came in to affect on 6th April 2020 and will remove the Swedish derogation provisions set out in Regulations 10 and 11 of the AWR.

What is pay parity?

Pay parity simply means, basic working and employment conditions are the same as comparable workers who are recruited by the same business. Following the recommendations in the 2017 Taylor Review these measures were put together and revoke regulations 10 & 11. 

Due to these amendments:

• “Pay” includes any payment in connection with an agency worker’s employment, including certain bonus payments, overtime payments, shift allowances, premiums paid for unsociable working hours and holiday pay. The regulations exclude bonuses payable for the amount or quality of work done by the worker; company sick pay; maternity pay; paternity pay; adoption pay; pension contributions and severance pay. 
• An agency worker is entitled to the same basic working and employment conditions as direct recruits of the same business (including pay) once he/she has undertaken the same role with the same client for 12 continuous calendar weeks.
• Agency workers with existing pay-between-assignments contracts on 6 April 2020 must be informed in writing by 30 April 2020 that they are no longer opted out of their equal pay rights. These workers can bring claims against their employers for not issuing the statement in time.
• Pay parity does not include bonuses which are not directly attributable to the amount or quality of the work done by the worker, and which are given to a worker for a reason other than his/her personal output, such as to encourage the worker’s loyalty or to reward the worker’s long-term service. 
• Workers will be protected from detriment and unfair dismissal if they try to assert their rights under regulations.