AWR myths 6-11

6. The R.5 rights to equal pay can be avoided by switching the workers to a new hirer every 12 weeks

Fact or fiction?

Part
fact, part fiction – this is correct, unless the agency worker is
alternated between hirer A and hirer B in order to try and avoid the
rights accruing, in which event there could be a breach of the
anti-avoidance provisions in the AWR. Breach of the anti-avoidance
provisions could result in a significant penalty for each individual
breach.

7. If the agency worker’s rate is higher than a comparator’s, the AWR does not apply

Fact or fiction?

Fiction
– where there is an agency worker the AWR will apply. If an agency
worker is earning a higher rate than a comparator, they will still be
entitled to all the other benefits afforded by the regulations. But make
sure that comparable rates are assessed on a like for like basis taking
into account paid hours and breaks.

8. If the agency worker’s
rate is higher than a comparator’s, the agency worker’s rate should be
reduced to equal the comparator’s after the 12 weeks. Alternatively, the
direct recruit’s rate should be increased to match the rate of the
agency worker

Fact or fiction?

Fiction – there are no
circumstances in which the AWR requires the hirer to change payments to
its directly recruited members of staff, nor need the agency worker’s
rate be reduced – the rights under the AWR provide only the minimum
entitlement. However you may choose to reduce the agency worker’s pay to
afford the additional rights such as extra holiday, if the worker will
agree!

9. An agency worker can have only one qualifying period running at a time

Fact or fiction?

Fiction
– an agency worker can have a number of qualifying periods running with
a number of hirers at the same time. If the agency worker completes an
assignment for hirer A on Tuesday and hirer B on Thursday every week for
twelve weeks, the qualifying period will be reached with both hirers in
the same week. If the agency worker alternates between hirer A and
hirer B each week, the qualifying period will be broken and will begin
again with each assignment.  

10. The AWR does not apply if the contract started before 1st October 2011

Fact or fiction?

Fiction
– the AWR applies to all supply after 1st October 2011. It does not
matter when the supply began. The weeks worked by an agency worker
before this time however, do not contribute to the twelve weeks required
to qualify for the R.5 right to equal pay.

11. The AWR only applies to those who were already agency workers on 1st October 2011

Fact or fiction?

Fiction – if the agency worker is supplied to a hirer on or after 1st October, the AWR will apply.