Recruiters and employers may have to revisit drafted contracts and other documents covering AWR following amendments made to the regulations earlier this week, according to Bridget Wood, head of law firm Blake Lapthorn’s recruitment sector group.

This week, the government published the Agency Workers (Amendment) Regulations 2011 (the “Amendment Regulations”) to amend the Agency Workers Regulations 2010 (the “AWR”).

The AWR come into force on 1 October 2011. Regulation 5 of the AWR provides that agency workers will have the right to equality of treatment with comparable direct recruits of the hirer in respect of certain basic working and employment conditions after a 12-week qualifying period. Hirers will be responsible for providing access to collective facilities and details of permanent vacancies from ’day one’. The Amendment Regulations correct ’drafting errors’, most notably:

·      the definition of ’agency worker’;

·      the provisions on ’pay between assignments’ contracts ; and

·      the provisions governing liability for breach of the equal treatment rights.

The definition of an ’agency worker’ is amended from an individual who has a contract of employment with the agency or:

·      ’any other contract to perform work and services personally for the agency’ to

·      ’any other contract with the agency to perform work or services personally’. 

This makes it clear that the agency worker does not have to perform work for the agency itself. The agency worker will have a contract with the agency that will usually cover work for a hirer. 

There is an exemption under the AWR from the obligation to provide equality of pay to agency workers who are employed on permanent contracts of employment and paid between assignments if available to work. The Amendment Regulations make it clear that the agency’s obligations to pay the agency worker and to look for suitable work when the agency worker is not working, but is available to do so, only apply after the end of the first assignment under that contract.

This is to ensure that there is no expectation that an agency worker will be entitled to receive pay during any period spent not working before the commencement of the first assignment.

The Amendment Regulations also rephrase an agency’s exemption from liability for a breach of the right to equal treatment under Regulation 5, where it is established that the temporary work agency has obtained, or has taken reasonable steps to obtain, relevant information from the hirer and acted reasonably in determining what the agency worker’s basic working and employment conditions should be at the end of the 12-week qualifying period.

The changes make it clear that such information must be about the hirer’s basic working and employment conditions, but it only has to be information about the relevant terms and conditions of a comparable employee of the hirer if this information was needed to assess compliance with Regulation 5. 

If the agency can establish this defence, the hirer will be liable for the breach. The hirer will always be liable for breach of the ’day one’ rights.

Those who have already drafted contracts and other documentation to cover the introduction of the AWR should revisit them to see if they need amending in light of these changes.