The Government has made some amendments to the Agency Workers Regulations (AWR), to provide clarity over the definition of agency workers, when payment between assignments starts, and how agencies can avoid liability for equal treatment claims.
In order to correct ‘defects’ in the wording of the Agency Workers Regulations 2010 (here), The Agency Workers (Amendment) Regulations 2011 (here) have been drawn up, and will come into force on 1st September 2011.
Definition of an ‘agency worker’
The definition of the term ‘agency worker’ in the original documentation was deemed to be too narrow and implied that the worker may be restricted to working for the recruitment agency itself, rather than a client.
In the original wording, an agency worker was defined as someone who has a contract with the temporary work agency which is a) a contract of employment with the agency itself, or b) any other contract to perform work and services personally for the agency.
The second part of this definition (b), has been replaced with “any other contract with the agency to perform work or services personally”, which clarifies that agency workers will actually work for end clients, but are sourced by agencies.
Payment between assignments
The amendments also clear up some confusion over when recruitment agencies become liable to pay agency workers between assignments.
Agencies only become liable to pay between assignments once the first assignment has been completed.
Previously, the original wording of Regulation 10 might imply that an agency worker would be paid during the period between signing an initial contract with the agency, and starting work on their first assignment.
This amendment will provide clarity for agencies contemplating the use of Swedish Derogation model contracts.
Liability from equal treatment claims
The Amendment Regulations also clarify the information that agencies would need to collect from the hirer when constructing a defence to an equal treatment claim from an agency worker (as detailed in Regulation 14).
Agencies will need to show that they have taken reasonable steps to collect information from the hirer to determine what basic working conditions the agency workers will be entitled to after 12 weeks on an assignment.
If agencies can prove that they have complied with the terms of the AWR in this context, then the liability for such a claim can legitimately be passed on to the client.