Regulations
The Agency Workers Regulations (AWR) and implementation of the Agency Workers Directive is the most significant legislation ever to hit the UK’s private recruitment industry – it will change the recruitment landscape forever, starting from October 2011. The implementation of the Agency Workers Regulations (AWR) in October 2011 will require recruitment agencies to review their own documentation to ensure that agencies fall into line with the Regulations. The Regulations are the most important legislation to affect the recruitment industry since the Conduct of Employment Agencies and Employment Businesses Regulations came into force in 2003. It is imperative that we support our clients to ensure they are ready for the Regulations. Guidance to the Regulations should be released in April 2011. Our Legal Team will have the guidance available immediately and legally compliant terms available end of June 2011.
As members of the REC we will keep our clients abreast of all legal implications In addition we will be offering training and webinars from July 2011. Presently we are evaluating the impact on our clients. Our planning tools, Payroll system and driver passport system from October 2011 we will have a platform to monitor your temporary usage in compliance with the new legislation.
Your Questions Answered:
If the drivers are employed by us and work at a site on a regular basis, who does the disciplinary in the event after 12 weeks?
Under the Swedish derogation model the agency would be the employer and responsible for discipline although you would need input from the client. If you do not adopt the Swedish derogation model you continue as normal. (Terms of business would insist that client participation was essential to carry out a process).
If different clients have different procedures, do we have to have a separate contract for each one?
You will have your own disciplinary procedures with your own employee drivers under the Swedish derogation model; you will just need to inform the drivers what the rules of each workplace are in the same way as now. (Agency has its own set of procedures under the Swedish derogation PAYE, drivers would still be workers then they would not be subject to discipline).
When on site working under the direction and control of the client, is the welfare the client’s responsibility or the agency? e.g. lateness
In the first instance, it is that of the client. However, the client may refer matters to you since the agency has the contract with the driver and you would be responsible for disciplining if you are adopting the Swedish derogation model. (Straight forward the client PAYE no disciplines. Swedish derogation agency discipline but clients must provide information trail).
If discipline is the agency’s responsibility, what responsibility does the client have in terms of providing accurate information?
None unless you make this a contractual requirement (terms of business)
Our client wishes to know if he pays his own driver’s meal allowance will he have to pay his agency the same after 12 weeks? (If the client classes this as expenses then, no the agency worker is not entitled).
It is likely this will fall under the equal pay provisions and that he would have to pay it to agency workers too. We are awaiting detailed guidance on what the Government means by ‘pay’ (Drivers on PAYE would be entitled to LV not expenses e.g. vouchers, that can be turned into cash are seen as PAYE)
If he works his driver’s annualised hours’ contract but however, only has 36 hours available, the driver gets paid 48 but owes the client 12 hours free during a busy period. How could we safeguard that the driver would be available when it was next busy? Can the contract stipulate that they must work on specific dates? Or that if they have to give us notice before leaving they would pay us back from the final pay?
The Regulations do not affect the status of the workers so you can continue as you have been previously unless you adopt the Swedish derogation model. In that case if you asked a driver to carry out certain work they would be contractually bound to do so.
If a client pays overtime after 12 hours basic to their own drivers, would they have to pay overtime to their agency on the same basis?
Yes they would (Unless under Swedish or genuinely self employed).
If a client guarantees a minimum hour day 9:- 8 to his own driver, does he have to guarantee the same to an agency worker?
Yes, they have to be paid the same after 12 weeks’ work in the same role with the same hirer. (Lower minimum hour guarantee is ok under the Swedish derogation only).
If the drivers are employed by us and work at a site on a regular basis, who does the disciplinary in the event after 12 weeks?
Under the Swedish derogation model the agency would be the employer and responsible for discipline although you would need input from the client. If you do not adopt the Swedish derogation model you continue as normal. (Terms of business would insist that client participation was essential to carry out a process)
If different clients have different procedures, do we have to have a separate contract for each one?
You will have your own disciplinary procedures with your own employee drivers under the Swedish derogation model; you will just need to inform the drivers what the rules of each workplace are in the same way as now. (Agency has its own set of procedures under the Swedish derogation PAYE, drivers would still be workers then they would not be subject to discipline).
When on site working under the direction and control of the client, is the welfare the client’s responsibility or the agency? e.g. lateness
In the first instance, it is that of the client. However, the client may refer matters to you since the agency has the contract with the driver and you would be responsible for disciplining if you are adopting the Swedish derogation model. (Straight forward the client PAYE no disciplines. Swedish derogation agency discipline but clients must provide information trail).
If discipline is the agency’s responsibility, what responsibility does the client have in terms of providing accurate information?
None unless you make this a contractual requirement (terms of business)
Many clients are talking about going down the Swedish derogation route as their preferred route. Do you have an example contract for this?
No, but it would be relatively straight forward to amend an existing contract of employment to specify that the driver is entitled to a certain minimum amount of work and pay between assignments. As for pros and cons, see response to point 2. (The REC will be publishing model contracts)
If a worker wants to work for multiple agencies how does this work?
I am not sure whether you mean in the context of the Swedish derogation route, or just generally. Workers may work for multiple agencies and may have contracts with each agency. If they are in the same role for 12 weeks but supplied by different agencies they will be entitled to equal treatment after those 12 weeks. Therefore it is very important when they start working for the agency that you check where they have worked before and for how long.
How do notice periods work?
These are only relevant under the Swedish derogation model. You would not normally have notice periods with agency workers and this will not change under the new legislation unless you adopt the derogation which will mean that, as set out above, if you are unable to supply new work, then you must pay at least 50% of the pay the worker was receiving on the previous assignment, as long as this is not less than the National Minimum Wage, for a minimum of four weeks.
If all the agencies involved needed the individual on the Bank Holiday and the contract included Bank Holiday working, how could we guarantee the worker’s services? If the worker called in sick, we would not know if he or she was working for one of the agencies.
The legislation does not affect this situation unless you use the Swedish derogation model in which case you would ask the employee to work on a specific day. Otherwise you would ask the worker to self-certify that they were sick if they phone in sick as would be normal practice.
