Doing Nothing Is Not An Option
The Agency Workers Regulations (AWR) will come into effect in England, Scotland and Wales on 1st October 2011. We will be working with our existing and future clients to prepare for the impending Regulations. We know that doing nothing is not an option.
There has been a great deal of speculation in the press and on the internet about the new legislation, but both existing and future clients can rest assured that aap3 are working hard to keep up to date with all of the latest information to enable us to deliver services and solutions that comply with the legislation.
What is AWR?
The AWR will provide temporary workers with the right to the same treatment with regards to pay, holidays and working conditions as they would receive if they were engaged directly by an end user client to do the same job (once they have completed a 12 week qualifying period). There are two exceptions, relating to access to the client’s facilities and information on client vacancies, which apply from day one of an assignment. It is critical to note that the Regulations will not alter an agency worker’s employment status and it will not be possible for individual agency workers to ‘opt out’ of the regulations.
Out of Scope
It is also important to note that there are two distinct groups that are ‘out of scope’ of the Regulations:
- Limited Company Contractors operating as a business on their own account – The definition of an agency worker excludes those who are in business on their own account where the status of the hirer is that of a client or customer of a “profession or business undertaking” (i.e. a genuine business to business relationship). In the IT profession there a great number of Limited Company contractors who are operating a business on their own account, and they would be out of scope for AWR. However, simply putting earnings through a limited company would not itself put individuals beyond the possible scope of the Regulations. There are a number of tests, devised by the courts which examine the individual circumstances, including what the contract says or does not say, the expectations on the parties and their conduct.
- Managed Service Contract – Where a company provides a specific service to a customer, such as outsourced IT provision, this is usually known as a Managed Service Contract which is based on a contract for services that will usually set out certain service level agreements. The managed service contractor, not the customer, has responsibility for managing and delivering the IT service rather than just supplying the staff. If the Managed Service Contractor is genuinely engaged in supervising and directing its workers on site on a day to day basis and determines how and when the work is done then this group of workers are ‘out of scope’ of the regulations.
All in this together
aap3 recognise that we must work closely with our existing and future clients, to ensure that an agency worker receives his/her rights and all parties are compliant with the legislation. We will work with client’s existing systems and processes and ensure we ask the right questions at the right time when assessing the rights of the agency worker.
We will also give our clients guidance on what we believe they need to do to meet their obligations under the new legislation, for example highlighting permanent jobs to temporary workers and providing temporary workers access to the same facilities as their permanent equivalent (e.g. canteens or crèche facilities).
Please contact aap3 if you wish to discuss the legislation in more detail or if you would like us to work with you to deliver services and solutions that comply with the legislation.
