The Agency Workers Regulations - Our take
UPDATE - 21/09/2011
You are probably aware that AWR has received more headlines
recently because the Coalition has attempted to challenge some
aspects of its implementation. At the time of writing, nobody can
say what the result of this challenge will be, but we feel that it
is better to be over-prepared than under-prepared. Our AWR Task
Force would be pleased to discuss any concerns you may have
regarding AWR.
Please direct any questions to our AWR task force at awr@arm.co.uk
UPDATE - 06/07/2011
ARM are hosting a number of free AWR seminars to companies
interested in learning more about the regulations. If you're
interested in attending, learn more about
ARM's AWR seminars here.
UPDATE - 17/05/2011
Now that the final AWR guidance has been published, we will be
communicating with our Clients in the near future to provide
information and discuss impact assessments.
UPDATE - 06/05/2011
Since the Government announced on 19 October that it will not be
amending the Agency Workers Regulations, the Department for
Business Innovation and Skills (BIS) has been developing draft
guidance in partnership with key stakeholders, representing the
interests of agencies, hirers and agency workers.
This was available for comment until Friday April 15, and BIS
has announced that it is considering stakeholder comments before
publishing the final version on Business Link soon, allowing the
necessary time for all parties to prepare for the changes in
advance of the regulations coming into force in October 2011.
Many parties including ARM, APSco and the REC have tabled
comment asking for clarification on some of the key areas that we
have detailed in our previous AWR releases.
UPDATE - 01/04/2011
The long awaited guidance notes on the Agency Workers Regulations
have now been published. There now follows a two week consultation
period during which further input from the business community on
how the regulations will be implemented is welcomed. ARM continues
to be actively involved in the process to ensure we meet our
Clients' highest expectations. Copies of the guidance notes can be
found at
www.bis.gov.uk but
please contact us if you require any further information.
Firstly it is important to note that our view on
the Agency Workers Regulations (“the Regulations”)
is that, in isolation, they should not require our clients to
dramatically change their working practices as the significant
benefits of using contract resource through reputable agencies
remain.
It will, however, require the client/agency relationship to be
strengthened further in order to facilitate the necessary exchange
of information - and indeed these closer relationships could
further enhance the benefits of this flexible resource.
As you will no doubt be aware, the Agency Workers Regulations
come into force on 1 October 2011 and the Government has announced
that it has no plans to amend the legislation drafted by its
predecessors. It is important to note that there is no ability to
“opt out” allowed by the Regulations.
Here at ARM we have been actively involved in every stage of the
consultation process to date and will be running seminars to inform
our clients of the detailed requirements of the regulations as soon
as the guidance notes have been issued and we are in a position to
give informed advice.
Our current opinion is that it is important to ensure that
clients are aware of the impending legislation whilst ensuring that
premature action is not taken as we have seen a number of
“solutions” already marketed which appear to fall foul of other
legislation (e.g. MSC legislation) or which may be inappropriate
once the guidance notes have been issued.
However, there are currently a significant number of issues
about how the legislation will work in practice which need to be
clarified in the guidance notes due to be released in mid
April.
A couple of the principal issues needing to be resolved strike
to the core of the legislation and relate to;
a) The identification of to whom the
regulations apply. The legislation expressly covers contractors
providing their services through an Umbrella company or who are
PAYE-remunerated, and excludes the “genuinely self employed”, but
further guidance is required due to the many differing contracting
models used by contractors in the UK, and;
b) There is still an element of uncertainty
regarding the comparator to be used.
The Regulations provide for a twelve week qualifying period,
after which temporary workers are entitled to “equal treatment”.
This twelve week period is subject to a number of anti-avoidance
measures to ensure that it is not abused or impacted by certain
statutory leave (e.g. maternity leave).
Once the twelve week qualifying period has been achieved
temporary workers will be entitled to the same “basic” terms and
conditions as if they were employed directly by the end client. The
basic terms and conditions can be summarised as follows;
- Pay rate
- Overtime and certain bonuses (where linked to short term
individual performance)
- Working hours
- Rest breaks
- Annual leave
However the following are excluded;
- Certain bonuses (linked to long term performance)
- Pension
- Sick pay
- Redundancy pay
- Maternity, paternity or adoption pay
- Healthcare
- Share schemes
In addition to the above there are certain rights to which a
temporary worker will be entitled immediately on commencement and
these include access to on-site facilities, childcare, transport
etc which are available to comparable permanent employees. The end
client has an obligation to inform temporary workers about internal
job vacancies and temporary workers now have a right to paid time
off for antenatal visits.
Much of the above appears to be administratively onerous but
provided the necessary information is made available, by both the
end client and the contractor, the principal responsibility for
compliance will fall to the agency.
As initially noted we will be running
seminars as soon as the guidance notes have been released but
should you wish to discuss any of the above matters in more detail
please do not hesitate to contact us at awr@arm.co.uk and we will seek to
address your enquiry. Further updates and details of the seminars
will also be posted on our recruitment news
blog.