Agency Workers Regulations - 24 myths (part 2)

(Continued from Part One)

13. Agency workers will be entitled to SSP (Statutory Sick Pay) and payments in respect of maternity, paternity and adoption leave after the qualifying period

Myth – agency workers are already entitled to SSP and other statutory payments, but if the hirer has a policy to provide directly engaged staff with additional sick pay, maternity, paternity or adoption pay above the statutory minimum, the agency workers are not entitled to these payments.

14. Hirers can ‘opt out’ of the regs by asking agencies to employ agency workers directly, meaning they will not be agency workers under the AWR

Myth – hirers, temporary work agencies and agency workers are unable to ‘opt out’ of the regulations. The fact that an individual is employed by an agency, rather than hired on a contract for services, will not prevent them from being an agency worker under the AWR.

15. Swedish Derogation – if the employment contract specifies work for 1 hour a week, only 1 hour need be paid in between assignments

Myth – payment in between assignments is related to amount, not hours specified in the contract. The minimum amount must not be less than 50% of the maximum amount paid for a pay period in the 12 preceding weeks. This amount cannot be less than the national minimum wage.

16. The AWR prevents agencies from being able to claim transfer fees

Myth – the AWR has no bearing on the transfer fees in place with you and your clients.

17. For the professions or business undertaking solution to work, there has to be an absence of supervision and direction

Myth – without any supervision and direction, the individual would not be an agency worker in the first place, and the AWR would not apply. If an agency worker is carrying on a profession or business undertaking and the contracts are appropriately worded to reflect a client or customer relationship with the hirer, the individual can be taken out of scope of the AWR.

18. A worker cannot opt out of the Conduct Regulations if they are an agency worker under the AWR

Myth – the Conduct of Employment Agencies and Employment Businesses Regulations 2003 and the AWR are two entirely separate pieces of legislation. There are no links between opting out of the Conduct Regulations and the applicability of the AWR.

19. Agency workers are entitled to attend the Hirer’s Christmas party

Myth – the right to attend a client’s Christmas party is not a subject covered by the AWR. There is nothing to stop a client from allowing all staff, agency workers or otherwise from attending these events, but the AWR does not provide individuals with additional entitlements in this area.

20. Agency workers are entitled to a Christmas bonus

Myth or not? This depends – individuals are only entitled to bonuses provided by the hirer to their directly recruited staff which reward the quality or quantity of their work. An agency worker will not be entitled to bonuses which have no bearing on performance.

21. If an agency gives an indemnity to its Hirer, the Hirer cannot be taken to the Employment Tribunal

Myth – an indemnity is essentially an agreement that you will cover all costs and expenditures arising from a particular claim. If you provide an indemnity to your client, they could still be involved in the proceedings in the Employment Tribunal, but you will cover the costs of the case and the awards to the individual bringing the claim, if any.

22. It is the party responsible for paying the individual that will be liable for any claims under the AWR

Myth – liability under the AWR should be apportioned in accordance with who is to blame – this may not necessarily be the party that is actually paying the individual. Each party in the chain has responsibilities under the AWR:

• The hirer is responsible for providing day 1 rights to the individual and for providing the temporary work agency with information it needs to apply other rights under the AWR
• Agencies are responsible for applying the R.5 rights under the AWR if they are directly payrolling the individual, or for passing the information from the client to other third parties who are paying the individual
• The company payrolling the individual is responsible for actually applying the R.5 rights and providing these to the individual.

23. Failure to give an agency worker a parking space in a staff car park would automatically breach the right to day 1 access under the AWR

Myth – there may be an objective justification such as a waiting list or no spaces available; the AWR do not provide agency workers with preferential treatment.

24. The AWR is a complex gift whose layers will unwrap in 2012...

The accuracy of this statement largely depends on how optimistic you are! There are certainly ways to turn the AWR and your compliance with it to your advantage, to gain more trust from your clients and more loyalty from your workers. It may change the way you work, but it needn’t be the end of your business.

This is the concluding part of AWR- 24 Myths (see Part One), by Adrian Marlowe of Lawspeed, legal partner of The Association of Recruitment Consultancies.