Rights under the Agency Workers Regulations 2010

Since 1 October 2011, agency workers have been entitled to additional rights under the Agency Workers Regulations 2010 (AWR 2010). These rights are based on the principle of equality of treatment with comparable direct employees of the hirer. They are based on European Community law — the Agency Workers Directive. They divide into rights available from Day 1 of an assignment and rights available after 12 weeks in the same role with the same hirer.

Day 1 Rights

From Day 1 of an assignment, agency workers have the right to:

• Equal access to collective facilities provided by the hirer, for example canteens, waiting rooms, vending machines, toilet facilities, crèches, transport services (e.g. local pick up and drop off services), car parking, mother and baby rooms, prayer rooms, rest facilities, accommodation for workers who have to sleep on site; and

• Information and the chance to apply for vacancies in the hirer’s workplace.

12-week Rights

After 12 weeks on an assignment in the same role with the same hirer, agency workers are entitled to:

• Equal treatment on pay, holidays and working time; and

• Improved pregnancy rights.

“Pay” includes basic pay, holiday pay, unsocial hours payments (including enhanced pay for working on bank holidays), overtime pay, bonuses based on individual performance — including sales commissions and performance-related pay, some discretionary bonuses and vouchers (such as luncheon vouchers or childcare vouchers).

“Pay” does not include contractual sick pay, occupational pensions, maternity, paternity or adoption pay, bonuses unconnected to individual performance rewarding loyalty or length of service, redundancy pay, advances in pay or loans, expenses, payments linked to financial participation schemes (for example share ownership schemes) and benefits in kind.

“Working time” includes requiring an agency worker to sign the 48-hour opt out (see Chapter 4), night work, shift arrangements and rest breaks.

“Holidays” includes contractual holiday entitlement, the arrangements for booking and taking holidays, arrangements for public holidays and any agreed arrangements for re-taking holidays interrupted because of sickness.

The rights are available to both full and part-time agency workers.

Improved pregnancy rights

After twelve weeks on the same assignment for the same hirer, pregnant agency workers are entitled to:

• Reasonable paid time off to attend ante-natal appointments when on assignments; and

• The offer of an alternative assignment for pregnancy-related reasons or to be suspended on full pay when a suitable assignment is not available (the so-called Maternity Suspension).

There are rules in the AWRs governing the calculation of the twelve week period, as well as anti-avoidance rules aimed at preventing abuse by employers, who might for example, try to arrange gaps between assignments or rotate workers between jobs or hirers. Breach of these anti-avoidance rules can lead to an award of up to £5,000 compensation.

A hirer or agency will have a defence to a claim for equal treatment if they can identify one comparable current direct employee with similar qualifications and experience who receives the same pay and conditions as the agency worker.