Agency Workers Regulations - Swedish Derogation

The aim of the AWR is to provide agency workers with the same basic rights as permanent employees after they complete 12 weeks on a qualifying assignment.

The new rules come into effect on 1st October 2011, after the Government pushed back the planned implementation date by 12 months.

Final guidance for recruiters and employers was published on 6th May, with further guidance for agency workers themselves due shortly.

Plans for these regulations had been on the table for almost a decade beforehand, finally gaining EU approval in 2008.

What does equal treatment mean?

Agency workers must have access to regular staff facilities right away, such as the canteen, information on job vacancies that may exist, and childcare support.

After 12 weeks working on the same assignment, agency workers will be entitled to equal pay and basic working conditions as regular staff members.

Alongside equal pay, qualifying individuals will also be entitled to working time entitlements, night work, annual leave and rest periods.

The right to equal pay also includes holiday pay and any bonuses which may be given.

Complex rules exist to calculate when this 12 week period has been accrued, and anti avoidance measures have been put in place.

Which 'workers' are included?

Umbrella company contractors are included. Many leading schemes are currently adapting their business models to accommodate the new rules.

Limited company contractors who are genuinely in business on their own account should be excluded, although simply operating via a limited company will not necessarily exclude you.

Ultimately, the courts can decide if an individual is inside or outside the AWR scope, using the same employment status tests as are used to determined IR35 status.

Although professional contractors should be excluded, the May 2011 guidance is still open to interpretation, and does not provide a clear explanation of what 'in business on your own account' actually means in the real world.

The PCG and other organisations are currently lobbying for the Government to provide a clear definition of which individuals fall within the scope of the AWR.

Further information

Our recent article - Do limited company contractors fall within the scope of the AWR?

The PCG has published a May 2011 update on the AWR, of particular relevance to contractors - PDF.

Read the May 2011 final AWR guidance for recruiters and employers here - PDF