AWR Regulations: Agency Worker Rights Explained

As an employer, it will be important to understand the employment rules that apply to agency workers, compared to workers or employees who have been hired directly by you. The Agency Worker Regulations 2010 were introduced to remove discrimination facing agency workers in areas such as pay, holiday entitlement and working time conditions.

The following practical guide is to help those responsible for hiring agency workers to understand the basic provisions of the Agency Workers Regulations 2010, including their key obligations under the regulations.

 

What do we mean by ‘agency workers’?

 

An agency worker is an individual who is provided by a temporary work agency to undertake work in a particular job for you as the hirer, under your direction and supervision, on a temporary basis.

The worker is not self-employed, but rather works under an employment contract with the temporary work agency, although as the hirer you will be responsible for managing the individual’s work and what they do on a day-to-day basis during the course of their assignment.

An agency worker initially has fewer rights than those of an ordinary worker or employee. It is therefore important to ascertain the employment status of those that work for you. A person will not be classed as an agency worker and will, therefore, fall outside the scope of the regulations where:

 

• They have found work through a temporary work agency but they are in business on their account, ie; they are self-employed and working for you as their client or customer
• They are working on a managed service contract where they do not work under your direction and supervision, rather the agency supplies a service to you, such as cleaning or catering, and manages the worker
• They work for an in-house temporary staffing bank, where you employ temporary workers directly and they only work for you
• They are on secondment or loan to you from another business.

 

In particular, a person will not be classed as an agency worker in circumstances where they have found direct employment with you, either through an employment agency or by themselves. In these circumstances the employment status of that individual would be either that of an employee, depending on the terms of their contract with you, or a worker in the broader sense.

 

What are the Agency Workers Regulations 2010?

 

In general terms, the Agency Workers Regulations 2010 give agency workers the entitlement to the same basic employment and working conditions as if they had been recruited directly by the person or organisation hiring them, if and when they complete a qualifying period of 12 weeks in a particular job.

The underlying principle behind the regulations is for agency workers not to be disadvantaged by virtue of them being supplied by a temporary work agency, as opposed to if they had been recruited by the hirer directly. As such, businesses cannot treat agency workers less favourably than their permanent staff after 12 weeks in the same job in respect of pay and other rights.

From day one, agency workers are also entitled to access information in relation to employment vacancies within the hirer’s business, as well as the right to access the collective facilities provided by the employer such as canteens, staff rooms, toilet or shower facilities, any workplace crèche and car parking.

 

What are the basic rights of an agency worker after 12 weeks?

 

Under the Agency Workers Regulations 2010, after completing the 12-week qualifying period, agency workers are entitled to the same basic employment and working conditions as a comparable employee or worker who has been directly recruited to perform the same role.

Equal treatment applies to key areas such as pay, working hours, rest breaks, and annual leave, but it does not include all terms and conditions of employment, such as sick pay, pension schemes, or redundancy pay.

 

Key Elements of Pay

 

After 12 weeks, agency workers must receive equal pay to a directly recruited employee in the same role. This includes:

 

• Basic pay
• Overtime pay
• Shift allowances
• Pay for annual leave
• Bonuses or commission directly linked to the amount or quality of work performed

 

Bonuses or commissions that are not performance-based, such as those linked to loyalty, length of service, or company-wide incentives, remain outside the scope of the equal pay requirement. Agency workers are also still entitled to receive at least the National Minimum Wage.

 

Working Time and Holiday Entitlements

 

Once the 12-week period has been met, agency workers must receive the same working time and holiday entitlements as comparable employees. This includes:

 

• Rest breaks: Workers are legally entitled to a minimum 20-minute rest break during a shift exceeding 6 hours. If a directly recruited employee would receive more generous breaks (e.g., a 1-hour lunch break), the agency worker is entitled to the same.
• Annual leave: The statutory minimum of 5.6 weeks applies, but where comparable workers have additional contractual holiday entitlement, the agency worker must receive the same.
• Duration of working time: Agency workers must not be required to work longer hours than a comparable employee. However, employers are not obligated to offer the same number of hours to agency workers, as confirmed in the case of Kocur v Angard Staffing Solutions Ltd [2019].

 

The Kocur case clarified that while agency workers are entitled to equality in the maximum working time limits, there is no requirement to guarantee them the same number of working hours as directly recruited employees.

 

Rights of Pregnant Agency Workers

 

Pregnant agency workers who have completed the 12-week qualifying period are entitled to paid time off to attend antenatal medical appointments and antenatal classes while on assignment.

 

How does the 12-week qualifying period work?

 

The agency worker will be entitled to equal treatment having undertaken the same assignment for a period of 12 weeks, regardless of whether they have been supplied by more than one temporary work agency over the course of that period, and no matter how many hours they have worked on a weekly basis.

The 12-week qualifying period is triggered by working in the same job with the same hirer for 12 calendar weeks, whereby a calendar week will comprise any period of 7 days starting with the first day of an assignment. By way of example, where an agency worker begins work for you mid-week, all work done up to and including the following Monday will count as one calendar week.

Although the qualifying period can be broken where there is a gap between assignments, or even a move to a new assignment, in some cases a break will merely pause the clock that will then continue to tick when the agency worker returns. In other cases the clock will continue to tick even during the break.

The types of break that will pause the 12-week qualifying clock include:

 

• A break for any reason where this is no more than 6 calendar weeks and the agency worker returns to the same role with the same hirer
• A break of up to 28 weeks where the agency worker is incapable of work due to sickness or injury
• Any break where the agency worker is taking leave to which they are entitled, including annual leave
• A break up to 28 calendar weeks where the agency worker is required to perform jury service
• A break due to a regular, planned shutdown of the workplace by the hirer, for example, at Christmas
• A break due to strike, lock out or industrial action at the hirer’s workplace

 

The clock will continue to tick for breaks due to pregnancy, childbirth or maternity up to 26 weeks after childbirth, or any breaks where the agency worker is taking maternity, adoption or paternity leave to which they are entitled. However, the clock will only continue to tick for the originally intended duration of the assignment, or the likely duration of the assignment, whichever is longer.

Typically, the reasons for the qualifying clock to reset to zero include:

 

• Where an agency worker begins a new assignment with a new hirer
• Where an agency worker remains with the same hirer but is no longer in the same role, although the new role must be substantially different
• Where there is a break between assignments with the same hirer of more than 6 calendar weeks

 

 

What are the consequences of breaching the AWR regulations?

 

Where an agency worker is of the view that they are not receiving the same treatment as a comparable worker under the Agency Workers Regulations 2010, they will be able to enforce their rights in the employment tribunal. Further, both the temporary work agency and the hirer can be liable, in whole or part, for any lack of equal treatment.

However, where the temporary work agency would be initially responsible for the breach of the equal treatment principle, it will have a defence if it can show that it took reasonable steps to obtain relevant information from the hirer about its basic working and employment conditions and treated the agency worker accordingly. In these circumstances, the hirer will become solely liable for any breach of the regulations to the extent that it failed to provide the necessary information to the temporary work agency, or provided incorrect information.

Accordingly, you must ensure that you provide the temporary work agency with up-to-date and accurate information on your terms and conditions so that they can ensure that an agency worker receives the correct equal treatment, as if they had been recruited directly, after 12 weeks in the same job.

It is also worth noting that any attempt to deliberately deprive an agency worker of their entitlements can result in an award of up to £5,000 being made against you. In particular, the regulations incorporate anti-avoidance provisions that prevent a series of assignments being structured so as to prevent an agency worker from completing the 12-week qualifying period.

 

What are the Agency Workers (Amendment) Regulations 2019?

 

The Agency Workers (Amendment) Regulations 2019 were introduced as part of the Government’s Good Work Plan, which aimed to strengthen employment rights and improve working conditions in the UK. This followed an independent review of modern working practices, also known as the Taylor Review.

A key element of the amendment was the removal of the “Swedish derogation” under the Agency Workers Regulations 2010, effective from 6 April 2020. Previously, the derogation allowed temporary work agencies to offer agency workers permanent contracts with pay between assignments. However, this often resulted in workers receiving lower paycompared to directly-employed staff after 12 weeks in the same role.

Under the amended regulations, agency workers can no longer be excluded from the equal pay provisions after 12 weeks of continuous work. All agency workers must now receive the same pay as permanent employees performing comparable roles once they reach the 12-week qualifying period, regardless of whether they are paid between assignments.

The aim of the repeal was to eliminate unfair treatment and ensure equal pay for equal work, providing greater transparency and fairness for agency workers. Agencies are now prohibited from offering contracts that circumvent these equal pay rights, improving workers’ ability to make informed decisions about their employment arrangements.

Employers and agencies must ensure compliance with these regulations to avoid legal risks, including claims for unequal treatment or pay discrimination.

 

Need assistance?

 

DavidsonMorris are experienced employment law specialists, with expertise in supporting employers in all aspects of operational and strategic HR and employment legal risk management. We can provide guidance on what the regulations and the Government’s latest proposals mean for your organisation, its policies, systems and workforce planning and management programmes.

If you have a question or need advice about the Agency Workers Regulations, contact us.

 

Agency Worker Regulations FAQs

 

What are the Agency Workers Regulations 2010?

The Agency Workers Regulations 2010 ensure that agency workers receive the same basic working and employment conditions as directly employed workers after completing a 12-week qualifying period in the same role.

 

What rights do agency workers gain after 12 weeks?

After 12 weeks, agency workers are entitled to equal treatment in terms of basic pay, overtime, shift allowances, annual leave, and rest breaks compared to a directly recruited employee doing the same job.

 

Do agency workers receive equal bonuses or commission?

Agency workers are entitled to bonuses or commission directly related to the quality or amount of work they perform. Loyalty bonuses or long-service rewards are not included.

 

Are agency workers entitled to the same rest breaks?

Yes, after 12 weeks, agency workers are entitled to the same rest breaks as a directly employed worker. This could include longer breaks if those are offered contractually.

 

What are the rules for annual leave for agency workers?

Agency workers are entitled to the statutory minimum of 5.6 weeks of annual leave. If comparable employees receive additional leave, agency workers must receive the same.

 

Does equal treatment apply to working hours?

Agency workers must not be required to work longer hours than a comparable employee. However, as confirmed in the Kocur v Angard Staffing Solutions case, employers are not obliged to offer the same number of working hours.

 

Are pregnant agency workers entitled to paid time off?

Yes, pregnant agency workers who have completed the 12-week qualifying period are entitled to paid time off to attend antenatal medical appointments and classes while on assignment.

 

Does the 12-week period need to be continuous?

No, the 12 weeks do not need to be consecutive. Breaks of up to 6 weeks or absences for certain reasons (like sickness or annual leave) will not reset the qualifying period.

 

What happens if an employer breaches the Agency Workers Regulations?

If an agency worker’s rights are breached, they can bring a claim to an employment tribunal. Employers and agencies could face financial penalties or compensation awards.

 

How can employers ensure compliance?

Employers and agencies must keep clear records of working hours, assignment dates, and entitlements to ensure agency workers receive equal treatment after 12 weeks.