Final Agency Worker Guidance published

Last month the Government published a draft guidance document, aimed at clarifying how it anticipates the Agency Workers Regulations 2010 will apply in practice. A short period of consultation followed, culminating on Friday afternoon in the release of a final version of the guidance.

For hirers, agencies and agency workers alike, the Guidance is likely to provide a vital reference point to understanding and interpreting the Regulations, many aspects of which are complex. Although the final version reveals few substantial alterations to the draft document, it nonetheless includes a number of helpful changes to the text and lay out. Perhaps most helpfully of all, it contains a shortened but nonetheless comprehensive index and a “quick start guide” at the outset, summarising the key elements of the Guidance on a single page. Mark Hammerton, partner at international law firm Eversheds comments:

“We are just months away from the introduction of the Agency Workers Regulations in October and, although many businesses involved in supplying or using agency labour have been planning for this for many months, we are aware that others are still considering what the implications may be and what they need to be doing in preparation. Although the Guidance has no legal force in its own right and interpretation of the Regulations will ultimately be determined by the courts, it has significance for very many people.

“The release of the final Guidance means that all pieces of the “jigsaw” are now in place. Those organisations which are working through some of the more difficult issues (such as which aspects of pay have to be included, which of their contractors are in/out of scope and whether the “Swedish Derogation” is feasible) will now need to settle on their preferred approach.

“Few changes have been made to the draft guidance released last month, which will be viewed as a lost opportunity by some hoping the Guidance would provide more complete answers to the many tricky practical issues the Regulations are likely to present. Even so, some useful additional clarification is offered, for example, the situation with respect to secondments. The Guidance has clarified that individuals on secondment or loan to another organisation are likely to fall outside of the Regulations since the supply of temporary labour in such an arrangement is not normally the main activity of the organisation involved. Importantly, this is not intended to extend opportunities for avoiding the Regulations, as the Guidance also makes clear. Examples cited include inter-group transfers of staff where a worker is hired by various companies in the group or where one group company hires the worker via an agency and then the worker performs work for various companies in the group. In each case, if the most likely explanation for the arrangements is avoidance of the Regulations, they will be open to challenge by an agency worker. ”

“Another particularly helpful aspect of the Guidance is the introduction given to the concept of a clock running in terms of accrual of periods which count towards the 12 week qualifying period. The terminology is not new but the way in which it is presented, along with additional examples of “when the clock pauses” should make understanding this complex part of the Regulations more straight forward. However, in endeavouring to provide succinct, straight forward guidance, there is inevitably a risk that some parts may be read out of context or be over-simplified. One such example in the Guidance is the summary definition of a “new” hirer in the context of the “qualifying clock”. The Guidance states, “The qualifying clock will be rest to zero if the agency worker stops working for one hirer and begins working for another”. This does not mean that agency workers cannot work for multiple hirers at any one time, as the Regulations clearly acknowledge elsewhere. Indeed, one of the examples provided in the Guidance is of an HGV driver who works one day a week for four different hirers and thereby accrues service with all four hirers.”