We are finally entering the home stretch before the Agency Workers Regulations (AWR) come into force on 1 October 2011.

The Department for Business, Innovation and Skills (BIS) has now published its guidance to help hirers and agencies understand the new regulations.

To recap...

The AWR are intended to ensure:

  • That after 12 weeks in a given job, agency workers will be entitled to equal treatment in respect of certain basic working and employment conditions;
  • From the first day of their assignment, agency workers will be entitled to information about vacancies in the hirer's organisation to give them the same opportunity as other workers to find permanent employment, equal access to collective on site facilities such as childcare and transport services and;
  • Additional rights for new and expectant mothers.

Employers will need to consider what "pay" is for the purposes of their particular organisation. The Department for Business, Innovation and Skills (BIS) guidance contains a helpful explanation of what is anticipated will be "pay" for the purposes of the AWR.

Employers may want to consider how benefits are structured as this may affect whether or not they fall within the definition of "pay" under the AWR.

For example, ask:

  • Where possible, renegotiate terms to take account of the AWR and what the agency and end user have to do to accord with the AWR. For example, make it clear on the face of the contract who will do what and who is liable for what.
  • If there is no indemnity protection in the current contracts and it is not possible to renegotiate them, consider what steps you can take to mitigate the risks that this poses.
  • Consider engaging workers in different ways to mitigate the effects of the AWR and ease administration (subject to the anti-avoidance provisions contained in the AWR).

So, what should employers be doing now?

In the run up to the introduction of the Agency Workers Regulations (AWR), employers utilising agency workers should:

Audit

Check what your use of temps looks like so you can gauge what the AWR will mean for your business. For example, what terms and conditions will be caught and need to be given to agency workers who qualify?

Employers will need to consider what "pay" is for the purposes of their particular organisation. The Department for Business, Innovation and Skills (BIS) guidance contains a helpful explanation of what is anticipated will be "pay" for the purposes of the AWR.

Assess the cost/hassle factor

The potential cost of agency workers obtaining the right to "equal treatment" and the 'hassle factor' of keeping an eye on when they qualify will need to be assessed.

Make changes

Employers may want to consider how benefits are structured as this may affect whether or not they fall within the definition of "pay" under the AWR.

Review existing contractual arrangements

Undertake a review of existing agency worker contracts to find out what (if any) protections they afford and identify any gaps.

For example, ask:

  • What do your terms and conditions say?
  • Who would be liable and for what?
  • Are they employed by the agency? If so, are they paid between assignments?

Consider termination

Is it better to terminate your existing agency contract?

Renegotiate terms/take steps to mitigate the risk

Where possible, renegotiate terms to take account of the AWR and what the agency and end user have to do to accord with the AWR. For example, make it clear on the face of the contract who will do what and who is liable for what.

Consider obtaining warranties and/or indemnities from suppliers.

If there is no indemnity protection in the current contracts and it is not possible to renegotiate them, consider what steps you can take to mitigate the risks that this poses.

Ensure that all new agency contracts address this risk.

Engage workers in different ways

Consider engaging workers in different ways to mitigate the effects of the AWR and ease administration (subject to the anti-avoidance provisions contained in the AWR).

Prepare

Do what is necessary to prepare to give agency workers the rights afforded by the AWR (for example, work out how best to ensure that they are told about vacancies etc).