Contractors’ Questions: What are my rights under the AWR?

Contractor’s Question: If I become a temporary agency worker (AW), what rights in the workplace might I be entitled to from day one and week 12 of any assignment I undertake after October 1st? And how is the 12-week qualifying period calculated and what, if any, maternity/paternity rights might I be eligible for? Lastly, are there still benefits that directly hired employees receive that I won’t under the AWR?

Expert’s Answer: Firstly, Day One rights – The Hirer is responsible for providing equal treatment from day one:

-An AW has the right to be treated no less favourably than a directly employed permanent individual who is completing the same or similar job at the hirer's workplace.
-An AW has the right to collective facilities and amenities such as a canteen, crèche (childcare facility), car park and use of transport services.

Secondly, the 12-Week Qualifying Period (QP):
-After 12 weeks in the same job the AWR entitles agency workers to receive the same basic employment and working conditions as to permanent employees (in a same or similar role).
-AWs have the right to equal basic pay, overtime, bonus and commission related to individual productivity, and the right to be paid and take the same holidays as a comparable permanent employee.

AWs will have the right to work the same hours as a comparable employee. They can also receive luncheon vouchers (or anything similar provided) with a monetary value, but NOT those provided through a salary sacrifice schemes such as childcare vouchers.

In terms of how the 12-week qualifying period is calculated, the starting point is that the right to equal treatment occurs after 12 weeks.

-Even 1 hour worked in any one-week equals to 1 whole week of the qualifying period.
- Even if an AW is supplied to work via different temporary work agencies there can be multiple qualifying periods running at the same time.

But the qualifying period clock can be paused or reset:

Types of absence that affect the 12-week qualifying period:

-Agency worker begins a new assignment with a new hirer, the clock resets 
-Agency worker remains with the same hirer but is no longer in the same role, the clock resets 
-Break between assignments of 6 weeks or more (which is not one which ‘pauses’ the clock or during which it continues to tick), the clock resets 
-Any reason where the break is less than 6 weeks, pauses the clock 
-Sickness absence, pauses the clock for up to 28 weeks 
-Annual leave, pauses the clock 
- Shut downs – e.g. factory closure or school holidays, pauses the clock 
-Jury service, pauses the clock for up to 28 weeks 
-Industrial action, pauses the clock 
-Pregnancy and maternity-related absence, the clock keeps ticking  
- Statutory maternity, paternity or adoption leave, the clock keeps ticking .

You ask about the benefits which employees receive that you will not be entitled to. Agency Workers will not be entitled to equal treatment in relation to redundancy pay, occupational pension schemes, share schemes, maternity/paternity rights or bonuses related to the company’s performance. The same is true of occupational sick pay, non-cash awards, advances in pay, loans or any other non-contractual payments.

In terms of AWR in relation to Maternity/ Paternity pay, it is stated above. That said, this does not affect statutory pay (if qualified). After the 12-week qualifying period, a pregnant AW will be entitled to paid time-off to attend antenatal appointments – bringing them in line with entitlements of comparable permanent employees. 

The benefits and entitlements spelt out in this answer are afforded to any individual who is supplied to work temporarily for a client (third party) under their supervision and direction of the hirer, who has a contract of employment or a contract to perform services, but who is not ‘genuinely self-employed.’

The expert was Marc Scott, of Liberty Bishop, an umbrella company.

Friday 30th September 2011