The Agency Worker Regulations
The over-arching principles behind the legislation are the fair treatment of temporary workers and for the rights of temporary workers to be consistent throughout the European community, enabling workers to traverse geographical boundaries without affecting their rights.
Whilst many people have voiced opinions as to the success or otherwise of AWR in achieving the over-arching objectives and as to whether it is a "bright idea‟, the fact is AWR is here to stay.
The legislation came into force on 1st October 2011, giving agency workers the entitlement to the same basic employment and working conditions as if they had been recruited directly by the hirer, if and when they complete a qualifying period of 12 weeks in the same job with the same hirer. It is not retrospective and for those agency workers already on assignment, the 12 week qualifying period will start from 1st October 2011. From 1st October 2011, agency workers will also be entitled to access to facilities and information on job vacancies from Day 1 of their assignment.
The legislation is complicated and there are still many grey areas that have yet to be clarified even after the release of the final guidance by the Department for Business Innovation and Skills in May. However, in brief the enhanced rights can be summarised as follows;-
Day 1 rights for all agency workers:
Agency workers must have the same access to the hirer’s facilities (such as canteen, childcare facilities, etc) and information on the hirer’s job vacancies from the first day of their assignment.
After 12 Weeks in the same job with the same hirer:
Additional entitlements relate to pay and other basic working conditions (annual leave, overtime, etc) and come into effect after an agency worker completes a 12 week qualifying period in the same job with the same hirer. Pregnant agency workers will now be allowed to take paid time off for ante-natal appointments during an assignment.
Many businesses feel they are at a cross roads in deciding how best to manage this change. In order to help the decision making process this document lays out in great detail not only the options we have identified as being compliant based on respected legal counsel, it also provides sample contracts as appendices.
WHAT OPTIONS ARE AVAILABLE?
It is our opinion that a compliant solution will fall into one of three categories, namely;-
- Use of a Comparator
- Pay between assignments or “Swedish Derogation” contracts
- Exemption under regulation 3(2) through self employment / limited company operation
Esentual have worked with their Recruitment clients, and their end clients, to ensure that the labour they need is actually placed on assignment terms and contracts which comply with AWR and their own preferred business operation using 1 of the 3 options bulleted above.
