AWD implementation regulations published

Mon, 25 Jan 2010

Agency Workers Regulations, which implement the Agency Workers Directive, have now been published.

The first public view of the regulations have now been uploaded to the Office of Public Sector Information (OPSI) website.

The Regulations confirm that implementation will not begin until after 1 October 2011.  

Following two consultations on the directive’s implementation, the government’s response to consultation confirms that:

• Agency workers placed with an end-user for 12 weeks or more will be entitled to the terms and conditions that would have applied if they been recruited as permanent employees. They will also be entitled to the same terms and conditions as comparable permanent employees.
  
  
• Eligible agency workers will be entitled to equal treatment in terms of “working time” provisions, such as holiday and rest breaks, as well as ‘pay’.
  
  
• ‘Pay’ now has a wider definition than proposed in the draft Regulations. While occupational benefits such as pension contributions, sick pay and maternity pay will not amount to pay, some bonuses that relate directly to the quality or quantity of work performed will need to be extended to agency workers.
  
  
• Breaks of less than six weeks between assignments will not reset the 12 week qualifying period. The Regulations also introduces a new anti-avoidance provision. If it appears that assignments have been structured in a particular way to try and stop an agency worker from acquiring rights under the Regulations, an award of up to £5,000 may be payable.
  
  
• Agencies will be liable for claims if an agency worker has not received equal treatment. However, liability could move to the end user if it has not supplied the agency information about the relevant working and employment conditions.

But Frances Lewis, consultant and head of Osborne Clarke’s recruitment sector, told Recruiter that its too early to begin planning for the legislation. “It is still early days. Quite a lot could happen between now and October 2011. There might be a new government.

“They are yet to publish the guidance that goes with the regulations so it is too early to start planning. We don’t know enough about how this is going to pan out. I am fairly confident there will be changes in the legislation or the guidance.

“There are a quite a number of changes from the intial draft that were not consulted upon. The anti-avoidance mechanism to make it more difficult for users and supppliers to get around the 12-week qualifying period are actually quite complicated. Guidance will have to be provided and there will be an opportunity for the industry to have input on the guidance.”