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The Agency Workers Regulations came into force on 1st October 2011 (in England, Scotland and Wales; from 1st December 2011 in Northern Ireland), but what does it mean for the way you run your business as a Locum?
The AWR applies to all ‘agency workers’ undertaking temporary work and gives them the same basic working and employment conditions they would have received if they had been employed directly by the end client in the same job (when compared to a ‘comparable’ permanent employee of the client. A ‘comparable’ worker is a directly employed member of staff who does similar, although not necessarily the same, type of work and generally at the same location. If there is no comparable worker there is no entitlement to equal treatment).
Although the original EU Directive was intended to give low paid, vulnerable, ‘agency workers’ protection, the way the legislation was written can bring some professional, higher-paid, Locum Contractors into its grasp.
In brief the AWR says that:
This means that if you are only receiving the legal minimum entitlement to holidays, rest breaks etc. you have the right to any enhanced entitlements your client gives to its permanent staff (if you are in-scope of the AWR).
The Department of Business, Innovation and Skills (BIS) issued final guidance on the Regulations in May 2011, and with the few cases that have made it to Employment Tribunal so far, it is mostly clear that Contractors will be treated as follows by the AWR:
Since the introduction of the AWR, Agencies that provide Locum Doctors and the employers that hire them have had to make changes to the way they administer and operate their arrangements. Agencies now have to gather information about a Locum’s employment history, so they understand their ‘employment status’ and can communicate this to the end-hirer.
Therefore, with regard to Day 1 benefits, agencies need to know:
With regard to Week 12 rights, agencies need to understand:
Locums working via Umbrella Companies will be classified as ‘agency workers’ under the AWR and therefore be entitled to equal treatment rights at their clients
There are many Umbrella Companies in the UK of all varying shapes, sizes and abilities. The large, reputable, Umbrellas know where they stand on the AWR and mostly deal with it by going down the Swedish Derogation route (SDM) offering permanent employment to their Contractors, which was and still is proving controversial.
When the Agency Workers Directive was negotiated at EU level a Swedish delegation negotiated a clause that said:
Where ‘agency workers’ are employed on a permanent contract by their TWA (agency / umbrella) and receive pay in between assignments, the AWR rights to equal pay for an agency worker no longer exists (so the client does not have to ensure the Contractor receives equal pay to a comparable employee).
For the Swedish Derogation model (SDM) to apply correctly, however:
However, this does mean your employment can be terminated by the TWA after 4 weeks if there is no further work.
The SDM only applies to pay – it does not remove the equal treatment rights to working hours, holidays etc. So, your Client is still liable for ensuring you receive these (if you are in scope).
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to us at The HR Kiosk (click here) – a Human Resources Consultancy for small businesses – you can retain us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
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