Workers Regulations Agency Workers Regulations Introductions - - PowerPoint PPT Presentation

Agency Workers Regulations

Agency Workers Regulations

Agency Workers Regulations

Introductions

Debbie Caswell MD North & Midlands Sue Jeffery Director Corporate Accounts

Agency Workers Regulations

A Recap on AWR

Agency Workers Regulations

Summary of AWR

The Agency Workers Regulations were laid before Parliament on 21st January 2010 and came into force on 1 October 2011. The Regulations provide agency workers with equal treatment (after a qualifying period of 12 weeks) in relation to a direct recruit and cover the following areas of a hirer terms;

• Basic working and employment conditions – restricted to pay and

working time; and

• Access to facilities provided by a hirer
• Access to information about job vacancies offered by a hirer

Agency Workers Regulations

Who is an Agency Worker?

An Individual;

• who is supplied by a temporary work agency to work temporarily

under the supervision and direction of a hirer; and who

• has a contract of employment or any other type of contract (a contract

for services for example) under which they provide their service personally for the agency.

• The Regulations will not apply to those who are genuinely self-

employed. What is Self-employed?

• an individual is not an agency worker if the temporary work agency is

a client or customer of the individual’s business.

• an individual is not an agency worker if the hirer is a client or customer
• f the individual’s business.

Agency Workers Regulations

Who Else is Involved?

The Temporary Work Agency

• For the purpose of the Regulations a Temporary Work Agency is an

undertaking which is in the business of “supplying individuals to work temporarily for and under the supervision and direction of the Hirer.”

• A “Temporary Work Agency’’ also includes an undertaking which is

responsible for “paying for, or receiving or forwarding payment for, the services of individuals who are supplied to work temporarily for and under the supervision and direction of hirers.” The Hirer

• “hirer” means a person engaged in economic activity, public or private,

whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person;

• In a traditional supply model the hirer will be the client of an employment

business.

Agency Workers Regulations

What is Equal Treatment?

• A qualifying agency worker will be entitled to work under the same;

“basic working and employment conditions” that would apply if the worker was recruited by the hirer to do the same job.

• To be entitled to receive equal pay and working conditions an agency

worker must meet the qualifying criteria:  Work for 12 weeks in the same role for the same hirer.  A role will be the same role unless the work or duties that make up the role are ‘substantively different’ from those in the previous role.

Agency Workers Regulations

Equal Treatment – What’s In …

Day 1 Rights - access to facilities and current permanent job openings

+ Basic Pay + Plus pay related elements:

• Overtime payments
• Shift/unsociable hours allowance
• Payments for annual leave (WTR) plus
• Payments for bonuses/commissions relating directly to work

performed by the individual

• vouchers or stamps which have a monetary value
• Other entitlements directly linked to work
• Payments for difficult or dangerous duties

Agency Workers Regulations

What is considered to be out:

x Notice Payments x Occupational Sick Pay x Occupational Pensions x Redundancy Pay x Expenses such as accommodation and travel x Enhanced Maternity, Paternity and Adoption Pay x Financial Participation Scheme i.e. Share and profits distribution x Bonuses not relating directly to the work done x Company car allowance x Life Insurance x PMI x Discount for purchase of company products

Equal Treatment – What’s Out…

Agency Workers Regulations

The 12 Week Qualifying Period

The 12 week count towards qualifying for equal treatment can be interrupted or paused in certain ways until the agency worker returns to same role. For example:

• 6 week break for any reason
• Sickness or injury up to 28 weeks
• Jury service
• Strike/lockout at hirer’s establishment
• Periods when the hirer does not require the worker because of a regular shut

down. For certain breaks, the agency worker will be treated as if he or she continued to work, i.e. clock will continue to count;

• Breaks related to pregnancy, childbirth or maternity (protected period).
• Statutory/contractual maternity, adoption or paternity leave.

Agency Workers Regulations

Prior to October 2011

Consideration was given to;

• Job Descriptions
• Average length of temporary assignments – typically more / less than 12 wks
• ‘Comparator’ data
• Pay scales / rates - clear and concise pay scales that could be referred to
• Differences in pay scales and employment benefits between perm / temp rates
• Bonuses - are these tied to production/performance or other criteria? Is it clear

that the bonus is paid in relation to ‘the amount or quality of work done’

• Potential increases in pay / charge rates applied after week 12
• How the company will continue to procure agency staff – i.e. pay parity, a

managed service or Regulation 10.

• Implementation and on going management of Day 1 rights

Agency Workers Regulations

Pitfalls and Potential Solutions

Little or no understanding of the Regulations across an organisation Ensure all areas of your business that hire temporary labour are fully briefed on the Regulations – include Hiring Managers, this is not just a topic for HR, good suppliers will be able to support with this. Insufficient sharing of information between hirer and suppliers at start of assignment Manage and allow the flow of data to your suppliers, respond to requests for information promptly. Be prepared early on for what will happen after 12 weeks and inform your supplier. Little or no monitoring of agency data i.e. start / end dates, previous work history Engage with your suppliers, ask to see their systems and methods for tracking AWR data.

Agency Workers Regulations

Pitfalls and Potential Solutions

Limited resources to undertake the additional administration tasks associated with AWR Develop strong relationships with agency suppliers, work with them, provide the info they require and they should be able to assist with the extra administration. Swedish Derogation (Regulation 10) Don’t allow agency suppliers to push you along this route. Be prepared for additional costs associated with pay between assignments and notice periods. Requires true expertise to arrange so enter into only if you are confident your supplier has a real understanding of the requirements. Engaging and releasing temporary staff every 12 weeks This is ok if you can prove this has always been your pattern of hiring i.e. around production peaks and troughs but remember ‘Anti Avoidance’ clauses are in the Regulations.

Agency Workers Regulations

Pitfalls and Potential Solutions

Claims of Pay Parity Embrace do not ignore - it may result in a potential claim, engage with your agency supplier as soon as possible. Negative PR A number of relatively high profile companies have been criticised in the media for their handling of AWR specifically where they are seen to avoid equal pay – work with your suppliers and unions (if applicable).

Entitlement Who must provide written info When can the agency worker challenge their treatment on assignment Liability Penalty Day 1 Rights Hirer Day 1. The hirer has 28 days from receipt

• f the written request

to respond in writing Client Up to 2 weeks pay Week 12 Rights Agency in first instance; then hirer After 12 weeks has

• elapsed. If a response

is not received from the agency within 30 days of making the request then the Agency or anyone involved in the chain of supply, e.g. Umbrella, Loss of earnings and up to £5,000

Agency Workers Regulations

One Year On……

Agency Workers Regulations

Industry Feedback

REC Survey reveals;

• Only 1 in 10 employers had stopped or significantly

decreased the use of temporary staff since AWR introduced.

• Of the 28% of employers who said they had reduced usage

two thirds said is was due to the continued economic uncertainty and not as a result of AWR

• Overall satisfaction of being a temporary worker increased

from 43% to 52%

• Employer satisfaction with staffing agencies remains high at

92%

Agency Workers Regulations

REC Survey Results

Agency Workers Regulations

REC Survey Results

Agency Workers Regulations The REC ‘JobOutlook Survey’ posed a question that specifically quizzed employers about their assessment of the impact the AWR has had one year on. The results revealed;

4 2 3 47 44

REC Survey Results

Agency Workers Regulations

Recent Tribunals

Bray & Ors-v-Monarch Personnel Refuelling

First tribunal ruling on 'Swedish Derogation' What is the 'Swedish Derogation'?

• Contract of employment with agency
• Provides specific information
• Excludes pay parity with other workers
• Includes obligations to paid workers between assignments for at least 4

weeks Under the so called Swedish Derogation, agency workers do not have to be paid the same as comparable employees of the hirer provided they are employed directly by the agency on contracts that comply with the requirements of Regulation 10 of the AWR. This includes an obligation to pay agency workers when they are not working

• n assignment for at least 4 weeks.

Agency Workers Regulations

Background to the Bray & other case

• Bray & others were tanker drivers
• Employed by Monarch working for BP Oil
• Stable workforce had worked on a number of assignments for many years
• Drivers paid well but 70p less per hour than drivers recruited directly by BP
• BP instructed Monarch that Regulation 10 contracts were to be implemented

Changes Made

• Existing assignment ended on 30th Nov
• New contracts (Regulation 10) issued on the 15th Nov
• New Regulation 10 contract had to be returned to Monarch by the 29th Nov

Claimants Argument (a) the contract of employment was entered into before the beginning of the first assignment under that contract and includes terms and conditions in writing relating to...'

Recent Tribunals

Agency Workers Regulations

Tribunal Decision - Monarch won On 15th November all claimants were issued with new contracts of employment with most drivers returning their contracts by the 29th November. It was accepted at the Employment Tribunal that the contracts complied with the requirements of Regulation 10, subject to the dispute about conditions set

• ut in the opening of Regulation 10(1)(a):

'10(1)(a) To the extent to which it relates to pay, regulation 5 does not have affect in relation to an agency worker who has a permanent contract of employment with a temporary agency if- the contract of employment was entered into before the beginning of the first assignment under that contract and includes terms and conditions in writing relating to...' Meaning of terms in the contract Because contract was issued to workers on 15th November and the terms didn’t take effect until post 30th November it seems in the tribunal judges mind to satisfy the requirements of AWR.

Recent Tribunals

Agency Workers Regulations

Kelly Services and Hewlett Packard

• Kelly Services workers claim for pay parity
• HP paid their permanent workers at a rate of £xx
• Some HP workers were on a lower rate due to performance concerns
• As a result by default the Kelly Services temporary workers were put on the

same pay rate as those permanent workers on the lower pay rate

• The tribunal judge ruled that HP were wrong to pay the Kelly Services temps

the lower pay rate as there was no evidence / suggestion that they too were underperforming

• The tribunal decision was the first of its kind however its not binding on
• ther decisions but may be potentially persuasive for future cases

Recent Tribunals

Agency Workers Regulations

The Future

Other Imminent Employment Legislation Changes;

• Auto Enrolment Pension (April 2013)
• Implementation of the Enterprise and Regulatory Reform Bill
• New tribunal award limits (1st Feb 2013)
• Employee-shareholder contracts are introduced
• Unpaid parental leave increases from 13 weeks 18 (March 2013)
• DBS checks (formerly CRB checks) become portable (March 2013)
• Collective consultation period is reduced to 45 days (6th April 2013)
• Real-time information for payroll (6th April 2013)
• Statutory maternity, paternity and adoption pay increases (April 2013)
• Rate of statutory sick pay increases (April 2013)
• Fee for bringing employment tribunal claim imposed (Summer 2013)

Agency Workers Regulations

Questions

Agency Workers Regulations For further information please contact; Debbie Caswell - 0161 835 8600 Debbie.caswell@search.co.uk OR Sue Jeffery – 07818 075 829 Sue.jeffery@search.co.uk