As we head into Q4 and see the implementation of the new Agency Workers Regulations the signs are clear that everyone is adhering to the new Directive, but we eagerly await the net effect it will have once this first 12 week period ends.

The difficulty for the HR community in advising an organisation on how to implement and manage the AWR is all about interpretation. It’s about striking the balance between the advice given by in-house legal teams versus what will actually stand in a tribunal.

Back in July we invited Lee Newell, Employment Lawyer from Bardells LLP and his industry colleague, Melvin Harris, Barrister with 5 Essex Court to give their views and one thing was clear, there is no middle ground. Melvin Harris representing an agency worker, would argue that access to facilities (let’s say the gym) should be on the same basis as permanent employee’s. His view is simply that if it is free, it’s free for all.

In-house legal teams however might be suggesting charging agency workers a fee to use the gym as they are still allowing access and adhering to the regulations. And therein lies the problem. Who is right and what should HR advise the organisation to do?

You might think that it’s unfair for agency workers to have to pay for gym access but what if they are earning £1,000 per day? Does that change anything?

And this moves us to the question of equal pay and bonus. Let’s say you are an IT contractor earning £800 per day. You have chosen to work as a Limited Company Contractor to enjoy the earning and taxation benefits. So when we look at equal pay, should it be before or after tax? What is fair?

I think it’s safe to say the AWR did not have IT Contractors earning £800 per day in mind when drafting the Regulations but nonetheless, organisations are still having to make adjustments for large groups of people who might not be interested in AWR or may even be unlikely to ever want to claim. It is our hope then that this benefit actually makes it to the people who need it and in the right way, but only time will tell. 

While we all wait in anticipation for the first test case and this still may not deal with all of the intricacies of the regulations, HR in the meantime will need to make sure they have done what they can to mitigate any risk and keep a close eye on what happens.


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