In October 2011, a piece of EU legislation will be implemented by the UK – The Agency Workers Regulations. It is essential that your business is ready for the changes and complies with the law regarding Agency Workers otherwise you could find yourself at Tribunal. This August, Headliners are offering you the opportunity to have a FREE AWR consultation – find out more here….
What is AWR – Agency Worker Regulations?
The AWR EU directive sets out to give more equal rights to agency or temporary workers – meaning they should be given the same basic working and employment conditions as if they had been recruited by you on a permanent basis. These rights only come into force after the agency worker has completed 12 weeks on an assignment with you.
Who does AWR affect?
The Agency Worker Regulations will affect agencies who supply temporary staff, contractors, freelancers and temps. The Regulations also affect any company who employ temporary staff for 12 or more calendar weeks. It does not however affect self employed, limited company contractors and those working on managed service contracts.
Who Qualifies?
The Regulations only apply to Agency Workers who:
- have completed 12 or more calendar weeks in the same role on the same assignment. Only time in an assignment AFTER 1st October 2011 will count.
- Unless the Agency Worker starts a substantially different role with you, to break continuity of the contract there must be a 6 week break in employment. There are circumstances where absences do not break continuity of the contract including maternity or paternity leave – as well as sickness absences of up to 28 weeks, all of which count towards the 12 week qualifying period.
The Rights
AWR will give Agency Workers the same basic working and employment conditions as their comparable permanent employee which will include:
- Pay
- Duration of working time
- Length of night work
- Rest periods and rest breaks
- Annual leave
“Pay” is defined as any sum paid in connection with employment i.e. a fee, bonus, commission, holiday pay or a voucher. It excludes additional employment perks such as pensions, occupational sick pay, maternity, paternity or adoption pay, termination of employment payments, shares, expenses and non work related bonuses.
An Agency Worker is also entitled to rights on day one which include access to on-site facilities (such as a canteen) if these are available to permanent employees. Agency Workers will also have the right to find out about vacancies within your company if they are available to permanent employees and must be given the same opportunity to apply as the permanent employees. These rights are directly enforced on the employer, not the agency.
An Agency Worker is entitled to be provided with certain information about the basic working and employment conditions of the employer which must be provided within 28 days. If the information is not provided within 30 days, the Agency Worker can apply to the employer for the same information.
If an Agency Worker has not received equal treatment
A claim can be brought in the Employment Tribunal by the Agency Worker if equal treatment is not received according to the guidelines. There is a risk of unlimited compensation based on the loss proportionate to the breach – excluding injury to feelings.
The liability falls to the agency if an Agency Worker is not treated equally so it is their responsibility to take all reasonable steps to obtain information from the employing company about its basic employment and working conditions. It also needs to be able to show that it acted upon the information received. However, it is the responsibility of the employer to provide the agency with the information relating to the basic working and employment conditions and liability may fall to the employer if this is not carried out in accordance with the guidelines.
If liability is seen to be split between the agency and the employing company, the employment tribunal will be able to apportion liability as appropriate.
Don’t try to get round AWR
If assignments are seen to be structured to try to avoid the obligations of the Agency Workers Regulations, a penalty can be imposed by the employment tribunal – on whoever was seen to be responsible for the avoidance.
Get it right
- Check to see whether any of your Agency Workers are likely to be employed for more than 12 weeks.
- Consider the roles you use Agency Workers for at the moment.
- Consider who the permanent comparable employee would be for these roles.
- Think about the basic working and employment conditions the comparable employee would have.
- Does this differ from the current basic and working conditions of your Agency Workers?
- Bearing these answers in mind, what equal treatment needs to be involved if the Agency Worker is employed for more than 12 weeks?
Steps to take if you are a company employing Agency Workers
- You will need to collate the information for the agency
- Who will collate it?
- How and when will this information be passed to the agency?
- Who will respond to the Agency Workers who request basic working and employment conditions information?
- Will you need to create a new confidentiality agreement with the agency now since you will be disclosing employment and terms information?
- Consider any data protection implications of the disclosures.
If you would like to make sure your business is ready for AWR, get in touch to arrange an appointment with one of the Headliners senior consultants who will be able to discuss this further with you. Call us today on 01189 123 100 or 0207 100 5477. www.headlinersgroup.com
The information in this article is for advice purposes only. Any legal advice on this matter should be sought from a qualified solicitor.
(Source: Various)
Do you employ temporary or interim staff?
In October 2011, a piece of EU legislation will be implemented by the UK – The Agency Workers Regulations. It is essential that your business is ready for the changes and complies with the law regarding Agency Workers otherwise you could find yourself at Tribunal.
What is AWR – Agency Worker Regulations?
The AWR EU directive sets out to give more equal rights to agency or temporary workers -meaning they should be given the same basic working and employment conditions as if they had been recruited by you on a permanent basis. These rights only come into force after the agency worker has completed 12 weeks on an assignment with you.
Who does AWR affect?
The Agency Worker Regulations will affect agencies who supply temporary staff, contractors, freelancers and temps. The Regulations also affect any company who employ temporary staff for 12 or more calendar weeks. It does not however affect self employed, limited company contractors and those working on managed service contracts.
Who Qualifies?
The Regulations only apply to Agency Workers who:
- have completed 12 or more calendar weeks in the same role on the same assignment. Only time in an assignment AFTER 1st October 2011 will count.
- Unless the Agency Worker starts a substantially different role with you, to break continuity of the contract there must be a 6 week break in employment. There are circumstances where absences do not break continuity of the contract including maternity or paternity leave – as well as sickness absences of up to 28 weeks, all of which count towards the 12 week qualifying period.
The Rights
AWR will give Agency Workers the same basic working and employment conditions as their comparable permanent employee which will include:
- Pay
- Duration of working time
- Length of night work
- Rest periods and rest breaks
- Annual leave
“Pay” is defined as any sum paid in connection with employment i.e. a fee, bonus, commission, holiday pay or a voucher. It excludes additional employment perks such as pensions, occupational sick pay, maternity, paternity or adoption pay, termination of employment payments, shares, expenses and non work related bonuses.
An Agency Worker is also entitled to rights on day one which include access to on-site facilities (such as a canteen) if these are available to permanent employees. Agency Workers will also have the right to find out about vacancies within your company if they are available to permanent employees and must be given the same opportunity to apply as the permanent employees. These rights are directly enforced on the employer, not the agency.
An Agency Worker is entitled to be provided with certain information about the basic working and employment conditions of the employer which must be provided within 28 days. If the information is not provided within 30 days, the Agency Worker can apply to the employer for the same information.
If an Agency Worker has not received equal treatment
A claim can be brought in the Employment Tribunal by the Agency Worker if equal treatment is not received according to the guidelines. There is a risk of unlimited compensation based on the loss proportionate to the breach – excluding injury to feelings.
The liability falls to the agency if an Agency Worker is not treated equally so it is their responsibility to take all reasonable steps to obtain information from the employing company about its basic employment and working conditions. It also needs to be able to show that it acted upon the information received. However, it is the responsibility of the employer to provide the agency with the information relating to the basic working and employment conditions and liability may fall to the employer if this is not carried out in accordance with the guidelines.
If liability is seen to be split between the agency and the employing company, the employment tribunal will be able to apportion liability as appropriate.
Don’t try to get round AWR
If assignments are seen to be structured to try to avoid the obligations of the Agency Workers Regulations, a penalty can be imposed by the employment tribunal – on whoever was seen to be responsible for the avoidance.
Get it right
- Check to see whether any of your Agency Workers are likely to be employed for more than 12 weeks.
- Consider the roles you use Agency Workers for at the moment.
- Consider who the permanent comparable employee would be for these roles.
- Think about the basic working and employment conditions the comparable employee would have.
- Does this differ from the current basic and working conditions of your Agency Workers?
- Bearing these answers in mind, what equal treatment needs to be involved if the Agency Worker is employed for more than 12 weeks?
Steps to take if you are a company employing Agency Workers
- You will need to collate the information for the agency
- Who will collate it?
- How and when will this information be passed to the agency?
- Who will respond to the Agency Workers who request basic working and employment conditions information?
- Will you need to create a new confidentiality agreement with the agency now since you will be disclosing employment and terms information?
- Consider any data protection implications of the disclosures.
If you would like to make sure your business is ready for AWR, get in touch to arrange an appointment with one of the Headliners consultants who will be able to discuss this further with you. Call us today on 01189 123 100 or 0207 100 5477.
www.headlinersgroup.com
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