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Joe Tully

de Poel

Legal Director

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Legal Insight: Key learnings from AWR, six weeks on

scales

 It was with great anticipation that everyone waited for 1 October 2011 and the new era of Agency Worker Regulations to dawn.

But in the event, the world of temp working did not stop spinning. So what have we learned six weeks or so on from living with the legislation?
 
Firstly, the same questions that were being asked before the 1 October deadline are still being asked. What does ‘working time’ mean? When can an agency ask a worker to sign a Swedish Derogation contract? Do limited company contractors fall outside of the regulations? Etcetera, etcetera.
 
This would appear to suggest that implementation of the legislation has not immediately brought answers to questions that have been toiled over for the last 12 months. By now, most lawyers have a view on what the changes mean, but no longer expect any further guidance from the Department for Business, Innovation and Skills.
 
Instead it seems that we must wait to see what interpretation the courts put on these grey areas after hearing the first claims that will, inevitably, be brought next year. 
 
Secondly, the number of requests for information about the Regulations’ ‘day one’ and post-qualification rights has been relatively small. Why is that?
 
It might be that hirers fully understand the Regulations and are already complying. It could be that agency workers are not interested in accessing crèches and canteens and are waiting for bigger wins when they accrue their 12 weeks of work that qualifies them to the same rights as permanent staff. Or it may be that, despite the hype, AWR will be the damp squib that some predicted. 
 
Full impact
 
In fact, I suspect that we should have been circling December 2011 on our calendars and underlining it on whiteboards rather than 1October. Our view is that we will not see the full impact of the legislation until next month and January, at which point the first group of qualifying temps start to request information and make claims.
 
One issue, for example, has been to understand what relevant ‘comparator’ rates should be so that, when a temp reaches their qualifying period, there is another rate in place that they can be moved onto with the minimum of fuss. 
 
Over the last few weeks, there has also been a lot of publicity about Swedish Derogation contracts. If the stories are to be believed, Swedish Derogation employment contracts are acting as a ‘loophole’ and a way of ‘avoiding’ compliance with the Regulations.
 
But such claims are absolutely untrue as this method of supply is expressly provided for in the Regulations. Swedish Derogation offers agency workers the very real benefit of being paid by their employing agency even if it cannot find them work. This situation can be reassuring for temps because agencies are likely to make every effort to ensure that they always have work to offer them.
 
Finally, it appears that, human nature being what it is, while some have been working towards compliance for the last year, others have chosen to leave it to the last minute. And the advantage for the laggards is that they are, at this late stage, receiving advice that is as firm and as formed as it’s going to get.
 
But even those organisations that haven’t started on their compliance work as yet still haven’t missed the AWR boat. Despite Government whispers that it will subject the Regulations to an early review, I suspect that we will all have to live with them for some years.
 
As a result, even if you didn’t get your AWR house in order for 1 October, or are unlikely to do so even for December, it makes sense to explore how best to work with the Regulations in 2012, 2013 and beyond. To this end, our advice is as follows:
 
  1. Understand the profile of your expenditure on agency workers: How long do temp staff stay in particular roles at particular locations? It may be that, as a hirer, you typically offer short assignments of less than 12 weeks, in which case your exposure to the regulations is relatively limited.
  2. Get good advice: This is a niche area of the law and one that is so far untested in the courts. There are limited numbers of lawyers who have lived through the debates on how grey areas should be interpreted. Seek them out and don’t necessarily assume that your usual legal advisors will be expert in the area.
  3. Communicate with your agencies: AWR has forced hirers and agencies to communicate and work together in a way that was not previously necessary. Whatever your approach to AWR, you must ensure that you have a positive, joined-up relationship with your agencies or hire somebody who can manage those relationships for you.

Joe Tully is legal director at de Poel, which procures temps from a range of recruitment agencies.

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Joe Tully

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