Nick HobdenPartnerwww.ts-p.co.ukE: nick.hobden@ts-p.co.ukD: 01892 701326

3 November 2011

© Thomson Snell & Passmore 2011

Agency Workers RegulationsA guide for hirers and agencies

- hosted by Hays

Nick HobdenPartner & Head of Employment

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Nick HobdenPartnerwww.ts-p.co.ukE: nick.hobden@ts-p.co.ukD: 01892 701326Find me on Linked In!

Session summary

• Legal Obligations

• Implications of non-compliance

• Steps to help organisations comply

• Q and A’s

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The Agency Workers Regulations 2010

• Came into force from 1 October 2011

• Covers ‘temps’ – Myth?

• No reasonableness test for temp to perm fee

• Non-statutory guidance from BIS

• Dept of Education – supplementary guidance

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In scope/ out of scope

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In scope Out of scope

Agency worker – employed/personally contracted to work (inc umbrella companies) finding work through…

Genuinely – self employed/ service providers/ PSCs – STATUS?

…TWAs – employment businesses - inc intermediaries (vendors) supplied to…

Managed service contracts under supervision of TWA not Hirer

…Hirer (end user) supervising and directing workers

In house (temp) staff banks but not if supplied to H2 (secondment?)

Scope – out of scope

• Not permanent placements/recruitments

• But note equality of pay clause

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Day one rights

• Two ‘day one’ rights:• Right to be informed of relevant vacancies

• Access to “collective facilities and amenities” (on site)

• Comparators

• Same establishment

• Objective justification – collective facilities and amenities only

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Equal treatment - qualification

• 12-week qualifying period = qualify for the same basic working conditions as would be - as if recruited directly (Comparator?)

• When calculating the 12-week period:

• a move to a substantially different role or different H or a break of six weeks or more between assignments = resets the clock

• Any break less than 6 weeks or due to holiday or sickness (up to 28 weeks) = pauses the clock

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Examples

• Working through multiple agencies • AW with TWA1 at H1 – 6 weeks

• AW with TWA2 at H1 – 3 weeks later for 8 weeks

• Clock reset or paused?

• Working for multiple hirers• AW drives HGV 1 day per week for H x 4 – 12 weeks

• When equal treatment arises?

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Equal treatment - qualification

• Maternity and for up to 26 weeks after child birth

• Adoption and paternity leave

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Equal treatment

• ‘Basic working conditions’ = • Pay• Working time • Overtime – qualification?• Holiday pay (over WTR)• Rest breaks (over WTR)• Bonuses/ commission linked to individual performance (sales) hybrid

schemes?• Time off for ante natal appointments; alternative work on maternity

grounds; paid for maternity work suspension

• NB ordinarily included all aspects of comparator package taken into account

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Exclusion from equal pay inc holiday pay only

• Swedish derogation – permanent employee of TWA – paid between assignments

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Exclusion from pay and basic working conditions

• NOT• occupational pensions (though note from October 2012 automatic pension

enrolment)

• occupational sick pay (above SSP)

• maternity, paternity and adoption pay (above statutory SMP, SPP and SAP rights)

• redundancy pay (statutory and contractual)

• notice pay (above statutory notice)

• benefits in kind (such as company cars)

• bonuses not linked to individual performance (such as loyalty bonuses) – but hybrid schemes?

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Enforcement and information

• AW right to request information from H for day one rights – 28 day time limit

• AW right to request information from TWA on 12+ week rights

• TWA respond within 28 days after request for 12+ week rights

• After 30 days AW request of H – information – 28 day time limit

• NB – H and TWA exchange information in timely manner – reminders for changes/ amendments prompts

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Enforcement and liability

• Worker may bring claim before Employment Tribunal for infringement/detriment

• Liability usually rests with TWA for 12+ weeks, subject to:• ‘Reasonable steps’ defence

• Tribunal’s power to apportion liability for compensation and possibly £5,000 anti-avoidance fine

• Breach of ‘day one’ rights always hirer’s responsibility

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Action points - Hirers

• Audit of agency staff – basic terms compared with comparators

• Skills matrices for each role to establish comparisons

• Provide TWAs with standard t and c’s, pay scales and holiday terms

• Keep track of

• Short assignments and different

• Identify roles for which no direct comparator

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Action points for Agencies

• Internal systems – for collating information for comparators

• Close to 12 weeks, request information

• Reminders to hirers for changes

• Exchange of information and distribute to other TWAs

• Contract terms in TWA/hirer agreements for disclosure of information

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How will Hays operate

• Discuss and advise on the AWR requirements - Day 1 and Week 13

• AWR amended Internal systems – for collating information for comparators

• At 9 weeks, we will remind our clients of the12 week rights and choices

• At 9 weeks a Pro Forma request will be made for comparator information

• Reminders to hirers for changes each week to week 13

• Information (Pro Forma) kept on file and can be requested by AW after 12 weeks

• Amended T&Cs sent to AW where applicable

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Questions and Comments

• Questions

• Comments

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