The principal aim of the Agency Workers Regulations (AWR) is for temporary agency workers to be given the same basic working rights as other employees after 12 weeks on an assignment.
The AWR becomes law on 1st October 2011, following a 12-month delay.
Final guidance for recruiters and employers was published on 6th May, with further guidance for agency workers themselves due shortly.
Plans for the regulations had been on the table for almost a decade beforehand, before 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.
Following the completion of 12 weeks on an assignment, temporary agency workers will receive the same equal pay and working conditions as other permanent members of staff.
Qualifying agency workers will also be provided with other benefits such as annual leave, night work, 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.
Although the legislation wording has not provided sufficient clarity, it appears that contractors working via their own limited companies and are ‘in business on their own account’ are excluded from the scope of the new rules.
Importantly, you will not automatically be excluded from the AWR by virtue of working via your own limited company, you must be truly working in the manner of a business, not merely using the business structure to escape the Regulations.
The courts will ultimately determine whether a worker is caught within the AWR scope or not, using employment status rules (which are also used to establish IR35 status).
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.
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