One company 8 specialisms an inclusive partnership Accountancy & Finance Construction - Professional & Technical Engineering Human Resources Industrial IT Office Support Trades & Labour Is your business prepared? Allergate House, Belmont Business Park, Belmont, Durham, DH1 1TW Tel: 0191 374 1772 to Fax: 0191 374 1784 www.corepeople.com M0039602 Corepeople AWR.indd 2 15/06/2011 17:06
Agency work is important in the UK, with around 5% (c.1.2 million) of the workforce engaged as agency workers. This represents around 40% of agency workers in the EU. CBI, 2010 Is your business prepared? In October 2011, new legislation will come into force to give Agency Workers in the UK the same rights and benefits enjoyed by those employed directly by the hirer. The details were recently published under the title, 2010 (AWR) to help businesses plan for the change. At Corepeople Recruitment we see it as our duty to inform you of the AWR and to offer support in preparing for this new legislation. This guide is designed to provide an insight into the AWR and some of its implications. What is the purpose of the AWR? To provide Agency Workers with equal treatment. The AWR provides that Agency Workers should receive basic terms that are equivalent to a person recruited directly by you to do the same job. Does this mean that Agency Workers will be entitled to receive exactly the same terms and conditions as those employed directly by us? Agency Workers will only be entitled to the same basic terms and conditions as those directly employed by you. There is a 12-week qualifying period before this entitlement comes into effect. The AWR does not impose employment status between the Agency Worker and you. Corepeople provide many Agency Workers on a contract for services and this will remain unaffected by the AWR. Similarly, where Corepeople supplies an individual via an umbrella company, then that individual is employed by the umbrella company. M0039602 Corepeople AWR.indd 4 15/06/2011 17:06
The following table is a helpful guide as to what basic terms and conditions fall within the scope of the AWR. Nature of pay/benefit Basic Salary Company holiday entitlement in excess of statutory entitlement Overtime payments Unsociable hours payments (e.g. shift allowances, danger money) Restrictions on night work Rest breaks Vouchers or stamps with monetary value (eg. luncheon vouchers) Personal performance bonus (eg. piece-work commission related to personal output) Bonus based upon organisational performance (eg. company share or profit related schemes) Company sick pay in excess of statutory entitlement tice/redundancy pay Occupational pension contributions or schemes Applicable to Agency Workers? The following may be helpful when considering bonuses for Agency Workers: You will be able to attach the same conditions for bonus payments as those that apply to your direct employees. For example, you might apply the same length of service criteria, or a requirement that the Agency Worker still be working in an assignment on the bonus payment date. The AWR allows for consideration of pay as a whole. Therefore, as long as the basic pay and performance related bonus of an Agency Worker is at least the same as that of the comparator, there is no breach. Company maternity/paternity/adoption pay in excess of statutory entitlement (a) Do we have to provide a bonus to Agency Workers? Agency Workers are entitled to the same bonuses as comparable employees where they relate to the amount or quality of work done. Agency Workers are not entitled to company share or profit related schemes. (b) Who should we use as a comparator? A sensible starting point would be to consider what pay and benefits you would offer to a person if they were to be directly employed by you in the same job. This may be straightforward if you have clear grading and pay scales for roles. The AWR states that the obligation to provide the same basic working conditions is satisfied if the Agency Worker is engaged on the same terms as a comparable employee, providing that the comparator s terms reflect typical contractual terms in your organisation. M0039602 Corepeople AWR.indd 6 15/06/2011 17:06
The comparator for an Agency Worker would be: an employee working for you and under your supervision; and engaged in the same or broadly similar work. In this respect, whether they have a similar level of qualification and skills may be taken into account, if relevant. 3. Who is considered an Agency Worker? An Agency Worker is defined under the AWR as: an individual supplied by an agency to work temporarily for the hirer; an individual supplied via an intermediary (such as master and neutral vendors and so called umbrella companies). The genuinely self-employed will not be covered by the AWR, i.e a genuine business to business relationship. Simply putting earnings through a limited company would not in itself put individuals beyond the possible scope of the Regulations. Your Corepeople consultant will advise you prior to any temporary assignment whether the Agency Workers supplied are subject to the AWR. 4. Can an Agency Worker contract out of the AWR?. The AWR contain anti-avoidance provisions to prevent this. 5. What does the 12-week qualifying period mean? To make a claim for equal treatment under the AWR, the Agency Worker must have worked in the same role with you for 12 continuous calendar weeks, during one or more assignments. (a) Does an Agency Worker have to accrue the 12-week qualifying period with the same agency?. An Agency Worker can accrue 12 weeks qualifying service by being supplied by several different agencies. (b) How does the 12-week qualifying period apply to part-time Agency Workers? Service accrues in calendar weeks, not by hours worked. Therefore, in an extreme case, if an Agency Worker were to be placed into the same role with you (perhaps even by several different agencies) for just one day in each week, then after 12 consecutive weeks they would qualify for equal treatment. In practice, this introduces an increased need to keep accurate records of Agency Worker assignments. To deal with this potential extra administration, you will need a trusted agency which has the resources to keep and provide accurate information and records about your Agency Workers. Corepeople is equipped to deal with this by being able to produce weekly reports on Agency Workers assignments and qualifying periods. (c) What if the Agency Worker does not complete a full 12 weeks because, for example, they are ill? The right to equal treatment is only triggered when the Agency Worker has accrued 12 continuous calendar weeks service in the same role. Continuity will be broken: when there is a break of six weeks, or more, during or between assignments in the same role; or upon commencement of a new and substantively different role. In either of the above cases, the 12-week qualifying period will be reset (subject to the anti-avoidance measures mentioned at question 4). M0039602 Corepeople AWR.indd 8 15/06/2011 17:06
There are, however, a number of circumstances where absence will only pause the qualifying period. One of these is where an Agency Worker is absent due to certified sickness absence. In this case, the qualifying period resumes upon their return to work, provided this is within 28 weeks. (d) Are there any other situations which would pause the 12-week qualifying period? As well as absence due to injury or sickness, the following would be reasons for a pause in the qualifying period: A requirement to attend public duties, such as jury service (provided that they return to work within 28 weeks). A planned workplace closure, such as a Christmas shutdown. Industrial action. Annual leave. Agency Workers have a right to the same amenities and facilities as comparable employees. This would include on-site canteens, child-care facilities and transport services (but exclude season ticket loans and company car allowances). Access can only be refused on objective grounds and this may include long waiting lists making it impractical to offer access to Agency Workers. 7. Who is liable if one of our Agency Workers believes that he/she is receiving less favourable treatment than one of our direct employees in the same job? Liability for ensuring equal treatment for the Agency Worker, after completion of the 12-week qualifying period, lies with the agency. However, where the agency has taken reasonable steps to obtain relevant information from you about basic terms and conditions in your organisation, and acted reasonably in setting appropriate conditions for the Agency Worker, then liability for breach will (e) What about pregnancy related absence? In the case of pregnancy related absence, maternity leave, adoption leave and paternity leave, the qualifying period is not paused. In such instances, the qualifying period is deemed to continue for the original intended duration of the assignment, or the likely duration (whichever is longer). In practice, it is rare to guarantee the length of an assignment as the nature of temporary work is that it can end at any time. 6. Are there any rights which are not subject to a 12-week qualifying period?. The following rights are effective from the first day of an assignment, termed Day One Rights; Agency Workers have a right to be informed of any vacant posts within your organisation. However, if you are carrying out an internal reorganisation, which may involve a headcount freeze, then it is acceptable to make clear that any vacancies arising out of this restructure are only available to direct employees. M0039602 Corepeople AWR.indd 10 15/06/2011 17:06
lie with you. This will only apply if you are responsible for the infringement by, for example, not supplying the agency with the correct or any information relating to your employees basic working conditions. An Employment Tribunal is able to apportion blame if it considers more than one party is at fault. You will have sole liability in relation to informing Agency Workers of vacant posts and providing access to amenities and facilities (as highlighted in point 6 above). 8. What do we do if we receive a complaint from an Agency Worker about less favourable terms than a comparable employee? After completion of the 12-week qualifying period, and provided the assignment is continuing, an Agency Worker is entitled to submit a written request to their agency for the following information: relevant basic working and employment conditions in force; the factors considered by the agency when determining the basic working and employment conditions applicable to the Agency Worker; and if appropriate, the basis upon which a comparator was identified, and the relevant terms and conditions applicable to that comparator. 9. Do the AWR affect how we record and disclose headcount information?. Details of Agency Workers must now be provided during a collective redundancy exercise, TUPE exercise and other statutory consultations. More specifically, when disclosing information to worker representatives for the purposes of consultations, you will be required to state: the number of Agency Workers being used; the areas of the business in which they are used; and the type of work they undertake. The AWR also require you to disclose information regarding Agency Workers to recognised unions for collective bargaining purposes. All of the above means that you need to be confident that the agency you use can provide you with accurate information and records about your Agency Workers. Corepeople is able to support you with this. Upon receipt of such a request, the agency has 28 days to provide the information to the Agency Worker. If this information is not provided by the agency within 30 days of the request, the Agency Worker may refer the request directly to you. You will then have to respond to this request within 28 days. Corepeople would, of course, endeavour to respond to any such requests from Agency Workers. We have a proven procedure for handling requests efficiently and will be set up to handle any query that may arise from an Agency Worker. If the complaint cannot be resolved through the above procedure, the Agency Worker may bring an Employment Tribunal complaint. M0039602 Corepeople AWR.indd 12 15/06/2011 17:06
Corepeople are experts in this field and are able to provide various solutions to suit your business and take away any concerns. For example, Corepeople can: Provide HR consultancy to conduct an audit of your temporary workforce, with proposed solutions to help you effectively manage this for the future. Provide appropriate management information on all Agency Workers supplied through Corepeople, highlighting areas of concern and providing alerts in respect of how long each Agency Worker has been assigned to any particular role. Provide a management service for you, so that information and controls are in place for your whole temporary workforce. The above list is not exhaustive - Corepeople can act as your recruitment partner and tailor the service to suit your needs. (b) Determining the comparator 10. Will the Government be issuing any further guidance on the AWR?. Since the publication in 2010, the Government have issued guidance notes to provide practical implications of the AWR and examples of how to interpret the regulations. To access the full documents go to corepeoplerecruitment/awr. 11. How can Corepeople help? Corepeople recognises that the AWR presents a change to the management of Agency Workers. Through a combination of HR consultancy, managed service solutions, expert recruitment consultants, dedicated computer systems and a wealth of experience, Corepeople can help guide you through the introduction of the AWR. The following provides some practical examples of where Corepeople could assist your business: (a) Managing your temporary workforce To manage the temporary workforce within your business, it is essential that you have visibility and that you effectively manage that workforce. You need to act within the law, without compromising on productivity and cost efficiency. To ensure equal treatment under the AWR, it is essential that you have an understanding of who the appropriate comparators are. Corepeople are experts in the area of job evaluation and remuneration benchmarking. This means that we can do this work for you and determine comparators for you to work with moving forwards. Further, we can provide advice and guidance on how you should manage your temporary workforce to fit your budgets and business needs. (c) Limiting the effects Working with Corepeople, you can be confident that your risk is managed effectively. First, the AWR does not impose an employment status between you and the Agency Workers. Corepeople provide many Agency Workers on a contract for services, or supplies individuals engaged by umbrella or limited companies, so you can feel assured that the AWR will not effect this position. M0039602 Corepeople AWR.indd 14 15/06/2011 17:06
Upon placement of an Agency Worker through Corepeople, we will ensure that all necessary information has been requested from you to determine the appropriate rights under the AWR. Corepeople will deal promptly with any complaints from Agency Workers and will fully co-operate with you if any claims are brought. In summary, we see no reason for you to be concerned about the introduction of AWR. Please contact us if you would like to know how Corepeople can help you in dealing with the AWR and the different services that we can offer. Corepeople would welcome the opportunity to work with you in further developing a relationship of trust and confidence, which will benefit your business. What next? If you have any queries on the AWR and/or are interested in speaking to Corepeople about how we can assist you, please go to; corepeoplerecruitment/awr or contact Corepeople on 0191 374 1772 Disclaimer Please note that the information on the AWR contained in this document is provided free of charge for information purposes only. Every reasonable effort was made to make the information accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequence of replying on it, is assumed by Corepeople Recruitment Limited. The information contained in this document does not and is not intended to amount to legal advice. Agency workers regulations M0039602 Corepeople AWR.indd 16 15/06/2011 17:06