What Is a Comparator Under AWR?

Under the Agency Workers Regulations 2010 (AWR), the benchmark for an agency worker's equal treatment is not a named colleague. Regulation 5(1) of the Agency Workers Regulations 2010 entitles an agency worker who has completed the 12-week qualifying period to the same basic working and employment conditions they would have had for doing the same job if they had been recruited directly by the hirer, at the time the qualifying period began. Those conditions are the relevant terms ordinarily included in the contracts of the hirer's employees (or workers), covering pay, working time, night work, rest periods and breaks, and annual leave.

"Comparator" usually means the comparable employee in regulation 5(3) and 5(4). This is an actual employee of the hirer, not an imagined one, who works under the hirer's supervision and direction on the same or broadly similar work, taking account of qualifications and skills where relevant, and who works or is based at the same establishment (or, if there is none there, at another one). If the agency worker is on the same relevant terms as that employee, and those terms are ones ordinarily given to comparable employees, the regulation 5(1) right is deemed to be met. It is a route to show compliance, not a requirement: where no such employee exists, the recruited-directly test still applies.

Liability for getting it wrong is split. Under regulation 14, the agency and the hirer are each liable to the extent they are responsible for a breach. The agency is not liable if it obtained, or took reasonable steps to obtain, the relevant information about the hirer's terms, acted reasonably in deciding the worker's terms from it, and applied them; to that extent the hirer is liable instead. Under regulation 16, an agency worker who thinks they have been treated less favourably can ask the agency in writing for a statement of the relevant terms, which it must give within 28 days, and can then ask the hirer if the agency does not answer within 30 days.

The rules apply in England, Wales and Scotland. The AWR 12-week rule guide explains how the qualifying period is counted.