The Agency Workers (Amendment) Regulations 2011 have been published and provide for three small but important amendments to the Agency Worker Regulations 2010 (“AWR”). These amendments relate to the definition of an agency worker, the Swedish Derogation and liability provision in the AWR and have been included to correct existing drafting errors and to address potential issues with the legislation.
The changes are:
• The definition of ‘agency worker’ in Regulation 3 is changed from requiring the agency worker to have a contract with the agency which is either an employment contract or “any other contract to perform work and services personally for the agency” to “any other contract with the agency to perform work or services personally”. The change tightens up this regulation and prevents a technical argument that an agency worker is obliged to perform work or services personally for a hirer rather than the agency.
• Regulation 10, which sets out the requirements of the Swedish Derogation, has been amended so that the obligation on the employing temporary work agency to look for work and make payment during periods when the agency worker is not working but is available to do so will now not apply until after the end of the first assignment under the employment contract.
This correction is welcomed, it is something that the Association of Recruitment Consultancies has pressed for, and should provide some assistance in addressing potential technical claims which could arise where there is one long term assignment and there has therefore as yet been no opportunity for the employing temporary work agency to comply with the requirements of Regulation 10.
• The defence in Regulation 14 has been amended to both correct a drafting error and to add further detail as to what is required to set up a defence when the agency takes reasonable steps to obtain information about the hirer’s terms and conditions.
The AWR comes into force on 1st October 2011. For more information on the AWR and its impact on your business contact Lawspeed on 01273 236 236.