The AWR Will Not Solve Itself
15 Jul 2011
The 1st of October will soon be here and many users of agency staff are unsure of what to do.
With that in mind, below is a quick overview.
I hope this answers some questions.
If you do not place temps for more than 12 weeks at a time there is probably no issue for you (you need a six week gap between contracts otherwise infrequent projects can be added together to make 12 weeks), although small ones for our clients (e.g. The same canteen / smoking facilities should be available as for permanent employees from day one)
Always ask a new Temp who they have worked for in case it was the same client you are going to put them with. The weeks with another agency can add up.
Always ask clients what the permanent employees in the same role get. That’s the bench mark. However:-
If no comparable permanent employment, the Temp could not bring a successful claim.
Those workers definitely not captured by the regs:-
Short term direct client hire, those PSCs directly contracting with your client and those directly employed by you (“Swedish Derogation”).
Those workers definitely captured by the regs:-
Normal Temps, “Umbrella” workers who are not directly employed by the “umbrella” (i.e. It’s not using the Swedish Derogation), Single Person Service companies who contract through you rather than directly with your client and those working under the direction and supervision of your client.
Those workers “probably” not captured (case law will decide) by the regs:-
Companies contracting through you for a specific task (completion of a contract rather than an assignment), those not otherwise subject to IR35 i.e. multi director/worker service companies in which one can replace another to do work which is not (for other than for Health & Safety purposes) under the direction and supervision of the client.
Worst case scenario.
If workers are captured by the AWR (and most will be) and they are not given the same benefits as the comparable permanent worker after 12 weeks, both your client and you could be fined. Contrive to avoid the 12 weeks and you could also get fined.
For “what ifs” read the Guidance Notes. For detail, read the Directive and Regulations (Yawn). For updates, look out for case law.
We have a system to track temps leading up to the 12 week mark
Temp Network has the systems in place to ensure you are not caught out by the AWR / AWD.
In most cases we can even INDEMNIFY you against legal issues with regard to the AWR legislation.
If this is of interest, please contact me for details.