FAQ - Employment Information

Question
Agency worker regulation AWR
Answer

This is a one (web) page summary of the Agency worker regulation and the employee scheduling factors which trigger it.

The Agency worker regulation comes (or came) into force on 1st Oct 2011.

The employee rights themselves are for a separate article. This article is about tracking employment to determine which and when employees come into scope of the regulations.

At the end there are links to the relevant document from the Department for Business and Innovations & Skills and also the Agency worker regulation (so you can read it yourself if you are a glutton for punishment or need to fall asleep).

First some quick definitions:

The worker is the person in temporary employment.

The hirer is the company, organisation (or other legal entity) that the worker is temporarily employed at or assigned to.

The Agency (or Staff Bank) is the company or organisation that provides the worker to the hirer.

A substantive employee is an employee with a permanent or continuing contract of employment at the hirer.

The (employment) clock is a 7 day by 7 day calendar of employment.

It appears these regulations do not apply or alternatively their requirements are met:

If:

  • The temporary (temp) or flexible worker is also in substantive employment with the hirer in any post or position and the hirer is also the agency (an internal assignment of a substantive employee).
  • The worker already receives as good or better conditions than a substantive employee of similar experience doing the same job.
  • All workers doing that specific job with that hirer are temporary so there is no substantive employee to directly or indirectly compare.
  • Workers are provided directly under a self managed service (in which case it is the managed service provider that is subject to these regulations and is the effective hirer).

What these regulations do not do is:

Supersede or replace the National minimum wage or supersede the Working time directive regulations (WTD OR WTR)

Agency worker regulations apply to:

Employment during any calendar week from the start of the assignment or 1st Oct (whichever is later). So if the first day of work is a Wednesday then all work from Wednesday (green) to the following Tuesday constitutes the first week of the employment clock. Any work between the next Wednesday and the next Tuesday constitutes the second week (yellow) of the clock.

Agency worker regulation AWR Oct 1st 2001 week

  • A worker gains towards rights for all and any hirers that they are assigned to during each clock week.
  • A worker may gain towards rights to any single hirer via different agencies for each clock week.
  • A worker cannot transfer rights between different hirers.
  • The 12 week clock will be considered to pause when the employee has a break and then recommence on further employment with that hirer.
  • Reset the 12 week clock if employed by a different hirer (with a different legal identity see later).
  • Reset the 12 week clock if employed in a different role (see later).
  • Reset the 12 week clock if there is a continuous 6 week break (see anti-avoidance for exceptions).
  • Pause the 12 week clock if there is a break in employment of less than 6 weeks.
  • Pause the clock if the break is less than 28 weeks due to incapacity or injury.
  • Pause the clock if the break less than 28 weeks for jury service.
  • Pause the clock if the hirer shuts down for a break: e.g. extended Christmas and New Year break or School holidays if a teacher.
  • Pause the clock if there is a strike or industrial action at the hirer.
  • There are breaks where the clock continues to click: from start of pregnancy, pregnancy, child birth, maternity, paternity, adoption. In these cases the clock is considered as running until the contract for the worker ceases.

Things to note:

Different roles (definition), roles are considered as different if:

  • There is a different rate of pay.
  • There is a different skill set or formal qualification.
  • There is different job specific training required.
  • There is different job specific equipment used.

A notification to both the Agency and worker is required with any change of role.
There is anti-avoidance explicitly built in, for instance if the 12 week employment and 6 week break were repeated 3 times (there would only be 2 intervening 6 week breaks) then this is considered anti-avoidance and so in breach of the regulation.

So what is the minimum period I need to track?

Within the letter of the regulation a worker could work one week, have 5 weeks off, then work another week and take a further five weeks off up to another 11 times (6 x 11 weeks +1 or 67 weeks). In addition there may be pauses due to illness, jury service or other. For each of these (up to 28 weeks) there can be multiple occurances. Suddenly we get to a period over 3 years! Here is a more detailed

So can the Agency worker regulation clock be reset indefinitely under these regulations?
It appears to us that if a worker was scheduled at one hirer for a significant number of weeks (less than 12) and then was scheduled for another hirer for 6 weeks or (preferably) more then the directive would be explicitly met and the clock re-set indefinitely. (Note in the case of a Hospital Trust it would have to be a different Trust and not another Hospital site within the same Trust)

Is it possible to turn the criteria above into some sort of flagging system?

Which will give:

  • Automatic and accurate,
  • cost effective
  • prompt warnings

for employment banks or agencies supplying or hiring workers? The answer is yes.

  • Ava PA,
  • Ava cloud,
  • Ava web:

Contact us here

 

Additional information

We have a number of questions with the Department of Business and innovation relating to clarification on the AWR. The answers when they come will be published in this section of our site.

Update:

The AWR has been updated, https://www.legislation.gov.uk/uksi/2011/1941/made

We have received clarification (amongst other things, on the order in which certain conflicting provisos should be applied). These changes will be incorporated in our end of September release.

Other pages which may interest you

For the act itself here:

https://www.legislation.gov.uk/uksi/2010/93/contents/made

For reasonably readable 57 pages of information on comparison of benefits for temp workers versus substantive staff and other parts of the act then more here:

www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-905-agency-workers-regulations-guidance.pdf

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Disclaimer

Whist every effort has been made to ensure this summary article is a consistent portrayal of the Act, Added value applications accepts no liability for this content which is inevitably a much condensed interpretation and opinion based on our reading of the act and other relevant published government sponsored articles. Terms and conditions here...
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This FAQ was last updated on Wednesday, September 30, 2015

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