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27-11-2014 9:38:14

Agency workers rights – everything you need to know about AWR

ElectricStudio|Freelance, News

We’ve already touched on AWR – Agency Workers Regulations – but since this is currently a big, hot topic, we feel it warrants a closer look.

So this article explains everything you need to know about AWR, such as what it is, what it’s led to and even the future of this agency workers directive.

AWR – Agency Workers Regulations defined

Simply put, it’s an EU directive that was introduced in the UK in October 2011 to give temporary workers entitlements comparable to their co-workers who are in permanent roles:

If you spend 12 weeks in the same job with the same hirer, you qualify for equal treatment. This means you’re entitled to the same basic terms and conditions as ‘comparable workers’ – employees doing the same job in the same workplace. (source: gov.uk)

The agency workers directive also means that if you’re in such employment, you’re entitled to use on-site facilities, such as a canteen, showers and a workplace crèche, car parking and vending machines, from your first day in the role. In addition, you’re entitled to access information on job vacancies at that company, also from the first day of your assignment.

The ‘equal treatment’ mentioned above encompasses pay and other basic working conditions, such as rest breaks and annual leave.

Crucially, you can accumulate the 12-week ‘qualifying period’ even if you only work a few hours a week: it’s triggered by working in the same job with the same hirer for 12 calendar weeks, that is to say any period of seven days starting with the first day of an assignment.  Calendar weeks are accrued regardless of how many hours you do on a weekly basis.

If you’re pregnant

If you’re an agency worker, have been with the same employer for 12 weeks or more (ie you’ve completed the qualifying period), you’re entitled to paid time off for ante-natal appointments during an assignment.

Who do the agency workers rights apply to?

People who work as temporary agency workers, companies involved in the supply of such workers and also businesses who hire such workers.

Workers who typically come under the title of ‘agency worker’ (and, therefore, will be entitled to the same benefits as co-workers who’ve been hired permanently):

  • Those who work for a variety of employers on different assignments but are paid by an agency (which then deducts tax and National Insurance contributions)
  • Those with an employment contract with the agency but who work under the direction and supervision of the business that’s hired them
  • ‘Agency workers’ are also those who deliver a time sheet to an agency and are then paid by that agency for the hours worked
  • Individuals who do not operate  in a business on their own account

Temporary workers who meet the criteria above tend to be self-employed, acting as sole-traders. When such workers are on sick leave, the agency that supplied them will be obliged to pay their sick pay (subject to satisfying the criteria applicable to all workers); and when they take annual leave, the agency is liable for holiday pay.

Workers to whom the AWR legislation does not apply include:  

  • Individuals who have been introduced by an agency to an employer for a directly employed role, paid by the employer
  •  Those who operate having agreed a contract – which may be open-ended or run for a fixed period – with the employer
  • Individuals who work without an ongoing contract linking them and the agency that supplied them to the employer

What’s in it for you? Why work through your own limited company?

Declaring your earnings through a limited company doesn’t place you beyond the possible scope of the regulations.

The courts have devised a series of tests to determine workers’ circumstances and business relationships – in reality, not just on paper – to ascertain whether or not an individual’s position places them under the scope of the AWR regulations.

However, if you’re in business on your own account and working for clients in a genuine, ‘business to business’ relationship, you are not regarded as an ‘agency worker’.

As a consequence, you represent less of a financial risk to employers, who’d rather not be exposed to the obligation to compensate for holidays, sickness and other benefits. They’d rather hire you if you run your own limited company than if you operate as a sole-trader.

The regulations don’t specifically exclude those who work under their own limited company. But people who are genuinely self-employed and work without supervision or direction are not regarded as ‘agency workers’…and that includes many broadcast freelancers.

So, to answer the questions, ‘What’s in it for you?’ and ‘Why work through your own limited company?’, there are three compelling reasons:

  1. You’re more likely to get hired
  2. You can save money (in taxes that you won’t have to pay. Read under the sub-heading Limited v Self Employed – from a tax and legal perspective here for more details)
  3. You’re legally bound and fully compliant (the peace of mind that we all crave)
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