The Agency Workers Regulations Explained

The Journey so far… AWRs derive from the European Agency Workers Directive May 2011: BIS Guidance posted on 6 May Oct 2011: Implementation date – not retrospective “The Agency Worker Regulations are really only guidelines”

The AWRs: in a slide It applies to most Agency Workers – but not to the genuinely self employed (or managed services) look for tripartite arrangement Equal access to facilities and permanent employment: from Day 1 Equal treatment for basic conditions - mainly pay & holiday pay: after 12 week assignment Penalties for non-compliance & avoidance – joint liability for agency and hirer But Agency Workers are not employees!

Day one rights Right to be informed by the hirer of any relevant vacant posts with the hirer Access to information on job vacancies at same site Access to collective facilities –e.g. Canteen, gym, crèche, transport services, car parking –subject to ‘objective justification’ e.g. cost or morale? Liability for day one rights breach solely on the hirer Doesn’t include ‘ss benefits and discounts’ – no mention of training

Qualifying period 12 week qualifying period: –same role (i.e. not substantially different), same hirer –for 12 continuous weeks (whether F/T or P/T) –maternity (leave and pregnancy related) counts Pausing the clock –proof of sickness absence (for up to 28 weeks) –Breaks of less than 6 weeks –Annual leave, jury service, planned shutdown, strike Stopping the clock –Breaks of more than 6 weeks re-set the clock (caveats already listed) –Moves to a new assignment or new role - beware –Be careful of anti-avoidance provisions

Equal treatment (after 12 weeks) Entitled to the same basic working and employment conditions as they would be entitled to for doing the same job had they been recruited directly by the hirer This Includes: Pay (Basic Pay, Overtime, Shifts, Commission Payments), some Bonuses, annual leave, working hours, night work, rest periods, rest breaks, ante natal appts, childcare and canteen vouchers This Excludes: Pensions, Company Sick Pay, Insurance benefits, most Bonuses, most Employment Rights, maternity/paternity pay No reverse rights for employees!?

Education (illustrates some complexities) Clock “pauses” if break between assignments = less than 6 weeks. New Term – Clock “ticks” again In summer holidays clock still “pauses” Local authority typically “hirer” if agency worker moves around schools/other services But separate local authority or independent school breaks continuity Mainstream teaching regarded as the same – irrespective of subject Teachers to be paid on appropriate spinal column point (M1 to M6) (U1 to U3) (STPCD) If discretionary experience “points” are awarded permanent No need to pay supply teachers additional leave if already paid at full rate

Solutions Pay transparency between agency and hirer Commercial Contracts & Indemnities Avoid or minimise ‘non-compliant’ agency arrangements Mitigation: Adjust pay once legitimate complaint raised, do not get into litigation Easy Wins: access to Intranet & include on s Stop the supply after 11 weeks “at will” engagement Be careful of succession of contracts

Requests, liabilities and remedies Day 1 rights: Agency Worker to ask Hirer at any time (28) 12 week rights: Agency Worker to request information from the Agency (30) Agency initially liable under equal treatment (pay) claim Defence if Agency took “reasonable steps” to obtain info Liability then passes to hirer Indemnities to deal with it Sort out complaints at source, or lots of parties involved Complaint to Employment Tribunal within 3 months -Agency and hirer separately liable, depending on fault. Min. 2 weeks’ pay – regardless of loss? Additional award of up to £5,000 for breach of anti-avoidance

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