April 2020 saw legislative changes from HMRC – one of which was an amendment to the Agency Workers Regulations, specifically the introduction of The Agency Workers (Amendment) Regulations 2019.
For workers engaging assignments through an agency, the Agency Workers Regulations or AWRs - set out in 2010 (and updated in 2019) were designed to ensure that after a qualifying period, agency workers were entitled to the same pay and working conditions as permanent employees.
What is an agency worker?
An agency worker, as defined by AWR legislation, is someone who “is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and
(b) has a contract with the temporary work agency which is:
- (i) a contract of employment with the agency, or
- (ii) any other contract to perform work and services personally for the agency.”
An agency worker has certain rights over two specific time frames.
- Day one rights include access to facilities typically available to permanent staff (such as canteens and childcare facilities), as well as being included in internal communication of vacancies and the opportunity to apply from within, before the end-hirer outsources to fill the vacancy.
- From week 12 onwards of an assignment (known as the qualifying period, for which the worker has worked in the same role, with the same end-hirer), the regulations for temporary agency workers expand to include working condition regulations such as breaks and annual leave, as well as equal pay.
|Matched Payment Pay (MPP)||Swedish Derogation (SD)|
|Permanent contract of employment||Yes||Yes|
|Guaranteed 336 hours p.a.||Yes||Yes|
|Employment rights e.g. sick pay and holiday pay||Yes||Yes|
|Fully insured up to £25 million||Yes||Yes|
|Deduct PAYE tax and National Insurance||Yes||Yes|
|Comparator data gathering||Yes||No|
|Pay between assignments||No||Yes|
|Help finding next assignment||No||Yes|
AWR Regulations guidelines for recruiters and agencies
As an agency supplying temporary workers to an end-hirer, it’s vital to facilitate day one rights.
If the end-hirer confirms the duration and scope of the role to be in excess of 12 weeks and static in its function, it is your obligation as the agency to obtain information regarding typical pay and working conditions of permanent employees in similar roles. It is the obligation of the end hirer to provide you with this information.
This is to ensure fair treatment is shown to the worker you supply to the end-hirer; treatment should be no different than if that worker had been directly appointed by the end-hirer, after the 12-week qualifying period. These regulations apply only to workers who are placed on an assignment at an end-hirer on a temporary basis (initially) – and not through their own limited company.
2019 Agency Workers Regulation Amendments – agency focused
The amendments relate to the abolition of regulations 10 & 11 (removing the Swedish Derogation model) and provide additional protection for agency workers.
Repeal of Regulations 10 & 11
This has important consequences for the Swedish Derogation model which many agencies and umbrella companies use. Using the Swedish Derogation model means that an agency worker will receive pay between assignments, however, they will waive their rights to equal pay after 12 weeks.
Requirement to provide a written statement
If the workers contract of employment is still active on the 6th April 2020, the worker must be provided with a written statement confirming the agency worker is entitled to rights relating to pay conferred by regulation 5 of the 2010 regulations. The statement must be provided no later than 30th April 2020.
If the employer fails to provide this statement, the worker is within right to complain to an employment tribunal.
Unfair dismissal and the right not to be subjected to detriment
If an agency worker is dismissed on the principal or main reason of one of the below conditions, the worker can claim unfair dismissal and infringement of AWR’s through an employment tribunal.
This is applicable if the worker is dismissed because they;
- provided evidence of infringement of AWRs
- supplied evidence of the infringements mentioned
- claimed that the agency through whom they secured the assignment has not upheld these regulations
- claimed the agency has refused any of the rights outlined in the regulations
- had / has any suspicion that there is intention to carry out any of these conditions
As one of the largest and longest-established companies in the industry, Parasol’s the name you can trust to help out with AWR. We're an accredited member of the FCSA and compliance is at the heart of everything we do.
We know that you don’t want to be shouldered with too much responsibility – that’s why we’re committed to being with you all the way, whenever you need us.
In addition, we understand contractors inside and out, so you can rest assured they’ll be well looked after. Parasol provides recruiter support and we’re here for you all the way.
If you’d like more information on AWR, please request a callback and a member of our team will be in touch.