Agency Worker Regulations 2011

Laura HartleyDirector

Laura Hartley Recruitment Ltd

Recruitment Choices

1. The Managed Service Option2. The “Recruitment Service” Option3. The “Swedish Derogation” Option

The Managed Services

-Taking labour provider out of the definition of a “temporary work agency” by providing the whole service

-Making changes so that the workers no longer work “temporarily for and under the supervision and direction of hirers”

-It must be more than just a dressing up of the service provided

Managed Service Option Cont.

The agency should, for example:-Fully train and supervise the workers-Subject the workers to their own disciplinary

policy-Organise rotas, shift patterns, cover,

attendance recording -Manage pay, bonuses, holidays and other

benefits

Managed Service Option Cont.

Common managed services solutions include:-Catering-Security-CleaningFor example, BCS Foods Ltd could pay an

“agency” a fixed fee to provide the service of a whole production line

See BIS Guidance

The “Recruitment Service” Option

The definition of “agency worker” under Reg 3 includes a requirement that the individual has either a “contract of employment with the agency” or “any other contract with the agency to perform work or services personally”

The “Recruitment Service” Option cont.

-The regulations will be arguably be circumvented where there is no contractual relationship between the agency and the worker.

-The labour user can engage the workers itself either under a flexible contract of employment or a contract for services

-The agency will carry out more the role of an employment agency, getting paid for the introduction of candidates who are then employed by the labour user and/ or managing the relationship and its day to day fulfilment.

The “Swedish Derogation” Option

Exemption to Principle of Equal Treatment-The Directive provides an exemption:“Where temporary agency workers who have a

permanent contract of employment with a temporary work agency continue to be paid in the time between assignments”

“Minimum Amount”-Reg 10 will introduce the exemption into UK law.-It states that a “minimum amount” must be paid to the

agency worker during the period in which they are not working for the exemption to apply.

-The “minimum amount” must be at least 50% of the worker’s basic pay while on assignment and must not be less than minimum wage (Reg 11).

-Reg 10 also states that, during the periods between assignments, the agency must also take reasonable steps to seek a suitable new assignment for the worker and to allow the worker to be put forward for any such suitable alternative assignment.

“Starter Grades”

-In France, it is common for there to be an extra “training” grade for new starters- lower pay and benefits whilst training.

-Implemented in the UK by end users, meaning that new agency workers would only be entitled to the rights of permanent staff on the training grade (likely comparators).

-The introduction of such a training grade would affect permanent staff during the training period as well as agency staff after their 12 week qualifying period.

Harmonisation Option

-Harmonise the rights of its temporary workers with its permanent staff in advance of Regulations coming into force.

-More expensive from wages perspective-Could save on admin costs of implementation.

The burden of having different rights for agency staff with and without 12 weeks service.

Anti avoidance and liability

Only relates to the 12 week period.• Reg 9 gives a worker the right to be treated as

if they were entitled to equal treatment if a structure of assignments develops, the most likely explanation for which is the prevention of the worker being entitled to the rights conferred by the Regualtions.

• Tribunal can make an additional award of up to £5000 for a breach of this provision

Timetabling and implementing the plan

-Regulations to come into force 1st October 2011-Seek advice-Agencies need to work closely with hirers to

plan and ensure compliance with the regulation

-Avoid Anti avoidance-Final BIS Guidance now available

Information required

• Is there a comparable employee in the business?• Pay rates incl overtime and unsociable hours• Commission/ bonuses- what bases and when• Anticipated hours of work• Rest breaks• Annual leave* Has the worker worked previously for the client!

LH Recruitment

-Analysed our clients temp usage over 2 year period

-Visited all temporary clients to discuss the implications of the AWR

-Discussed the right option for the clients -Explained the process we will go through to

keep both the client and ourselves compliant.

LH Recruitment cont

Minimum quarterly service visitsEach assignment confirm to candidate and client• never worked there in the last 12 weeks• Pay rate and holidays• Reminder to client “day one rights”Week 10 flagNew assignment details for week 13 confirming pay

and holidaysFact sheet for each client given to candidate with

assignment details