Agency Workers Regulations 22 nd September 2011 This publication provides information on legal issues and developments of interest to our clients. The.

Agency Workers Regulations 22nd September 2011

This publication provides information on legal issues and developments of interest to our clients. The material is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice.

Readers should seek specific legal advice before taking any action with respect to the matters discussed in this publication.

Agenda

• Overview and Background to AWR

• Who’s involved?

• What does equal treatment mean – Entitlement & what is included.

• Claims, Liability & Penalties

• Comensura approach – timetable & data capture

• Impact Analysis

• Comensura Assignment Process

• FAQs & Issues

• Other Options

• Conclusions

What are the Agency Workers Regulations?• The Agency Workers Regulations are intended to promote equality in the workplace and

reduce the potential for exploitation of vulnerable workers.

• They extend existing Prevention of Less Favourable Treatment Regulations for part time and fixed term workers to Agency Workers,

• The Agency Workers’ Regulations bring the European Agency Workers Directive into UK law.

• They entitle temporary workers to equal treatment with regard to pay and working conditions, as someone recruited to do the same job but on a permanent basis with the hirer after a qualifying period of hire.

When do they come into effect?• The Regulations will be implemented from the 1st October 2011, regardless of length of

assignment.

• The entitlement for all temporary workers will therefore be effective from early 2012.

Overview of the Regulations

Who’s Involved?

Hirer

Temporary Work Agency Agency Worker

Intermediary

• Tripartite relationship – Workers, Hirers (any organisation booking Agency Workers to work under it’s direction, supervision & control) and Temporary Work Agency (TWA) and any intermediaries are in scope. Workers supplied by TWA to the hirer via a Master or Neutral Vendor are in scope.

An individual is not an Agency Worker if —

They are genuinely self-employed, working through their own account, and the Agency or the Hirer is a client of their business undertaking or profession.

• After qualifying, an Agency Worker is entitled to the same basic working and employment conditions as if they had been recruited directly by the Hirer, to do the same or broadly similar job, with the same skills and qualifications.

• The comparable terms and conditions as documented or generally applied in the workplace.

• Reference to comparable employees (the Comparator) on those terms will be evidence of compliance.

• If there are no comparative terms, then those applied at other locations of the Hirer may be considered.

The Entitlement

What is included?• Basic rate of pay, overtime and shift

premiums.• Bonuses related to the quality or

quantity of work done.• Fixed value vouchers.• Hours of work, rest and breaks.• Holiday entitlement above the statutory

minimum.• *Employees’ facilities such as canteen,

car park or crèche, subject to objective capacity.

• *Equal access to apply for internal roles.

*Day 1 entitlements

What is included & excluded

What is excluded ?• Bonuses and benefits intended to

reward loyalty or long service • Rewards based on company

performance• Pensions• Sick, maternity, paternity or adoption

pay above the statutory minimum• Redundancy payments• Staff discount schemes

After Qualifying, the Agency Worker can request details of how their pay and conditions were determined.

•Agency has 28 days to respond, if they do not, the Hirer has further 28 days to respond.

•An Employment Tribunal can draw an adverse inference if a written statement is not provided.

Claims will be made through the Employment Tribunals:

•Usually a 3 months deadline from the date of the detriment to claim.

•Informal conciliation or through ACAS is encouraged.

•Protection against victimisation for those giving evidence in Employment Tribunals

Claims, Liabilities & Penalties

Claims, Liabilities & Penalties

• Any or all parties will be liable to the extent that the ET decides it is responsible

• Any or all parties will have a defence if they can demonstrate they have– Taken reasonable steps to determine the comparable terms– Applied those terms at the end of the qualifying period

• The tribunal will compensate the worker for the infringement of their rights or any detriment suffered

• The minimum award will usually be 2 weeks pay• Where assignments have been structured to evade the Regulations, an additional

£5000 penalty may be awarded• Injury to feelings is excluded

Timetable

Communications

Data Gathering

Data Validation

Sign OffImpact A

nalysis

System Upload

GO LIVEChange Contro

l

Planned Date Action

June Identify key contacts - data gathering and sign off

Fortnightly Update communication detail ing key findings from pilot and items for consideration

w/c 13 June Issue of data capture template with Guidance Notes and FAQs

June/July Customers complete data capture exercise supported by Comensura

July/August Comensura review data and obtain sign off from Customers

August/Sept Comensura provide Customers with Impact Analysis

September Data loaded to C.Net ready for Go Live 01 October 2011

Data Capture

Impact Analysis

Quantify the usage of flexible labour in your processes – how many, where and when? Identify comparable employees in your location or elsewhere with whom equal

treatment might be expected

Establish what equal treatment will mean – what will be the impact on costs?Basic pay, premiums and incentives

Holiday entitlement Collective facilitiesJob opportunity policies

Review of internal procedures – who decides on use of temporary workers?

C.Net: Order/Assignment

SUPPLIERCLIENT

Day 1 Benefits & Parity Data

AWR Statement

Parity

Data?Places Order

YES

Submits Candidates

NOOrder Rejected

QP position of candidates

Assignment Creation /

StartConfirm Parity Data

Confirm QP/PED

FAQ’s & Issues

• Self employment, umbrella companies etc• Paid annual leave• Can there be an “offset” of greater pay against other benefits?• Child care vouchers and salary sacrifice schemes• Expenses, company cars and season tickets• Team nights out• Will Comensura provide information regarding how close workers

are to qualification? And can they be “discriminated” against?• Off contract spend

Other Options

• Do nothing• Pay parity• Avoiding comparators• Fixing Comparators• Short term bookings• Internal “bank” of staff• Outsourcing• “Swedish Derogation”

Conclusion

• All Hirers, Agencies and Intermediaries will carry an administrative burden

• Comensura will take the lead in compliance but cannot take total responsibility.

• Partnered action is necessary for effective implementation

• Full commercial impact analysis is underway.

• Evasion schemes carry a high risk of penalty, both financial and reputational.