AWR Myths 17-24

17. For the professions or business undertaking solution to work, there has to be an absence of supervision and direction

Fact or fiction?

Fiction – Without any supervision and direction, the individual would not be an agency worker in the first place, and the AWR would not apply. If an agency worker is carrying on a profession or business undertaking and the contracts are appropriately worded to reflect a client or customer relationship with the hirer, the individual can be taken out of scope of the AWR.

18. A worker cannot opt out of the Conduct Regulations if they are an agency worker under the AWR

Fact or fiction?

Fiction – the Conduct of Employment Agencies and Employment Businesses Regulations 2003 and the AWR are two entirely separate pieces of legislation. There are no links between opting out of the Conduct Regulations and the applicability of the AWR.

19. Agency workers are entitled to attend the Hirer’s Christmas party

Fact or fiction?

Fiction – the right to attend a client’s Christmas party is not a subject covered by the AWR. There is nothing to stop a client from allowing all staff, agency workers or otherwise from attending these events, but the AWR does not provide individuals with additional entitlements in this area.

20. Agency workers are entitled to a Christmas bonus

Fact or fiction?

This depends – individuals are only entitled to bonuses provided by the hirer to their directly recruited staff which reward the quality or quantity of their work. An agency worker will not be entitled to bonuses which have no bearing on performance.

21. If an agency gives an indemnity to its Hirer, the Hirer cannot be taken to the Employment Tribunal

Fact or fiction?

Fiction – an indemnity is essentially an agreement that you will cover all costs and expenditures arising from a particular claim. If you provide an indemnity to your client, they could still be involved in the proceedings in the Employment Tribunal, but you will cover the costs of the case and the awards to the individual bringing the claim, if any.

22. It is the party responsible for paying the individual that will be liable for any claims under the AWR

Fact or fiction?

Fiction – liability under the AWR should be apportioned in accordance with who is to blame – this may not necessarily be the party that is actually paying the individual. Each party in the chain has responsibilities under the AWR:

•    The hirer is responsible for providing day 1 rights to the individual and for providing the temporary work agency with information it needs to apply other rights under the AWR
•    Agencies are responsible for applying the R.5 rights under the AWR if they are directly payrolling the individual, or for passing the information from the client to other third parties who are paying the individual
•    The company payrolling the individual is responsible for actually applying the R.5 rights and providing these to the individual.

23. Failure to give an agency worker a parking space in a staff car park would automatically breach the right to day 1 access under the AWR

Fact or fiction?

Fiction – there may be an objective justification such as a waiting list or no spaces available; the AWR do not provide agency workers with preferential treatment.

24. The AWR is just an exciting Christmas present…

Fact or fiction?

This largely depends on how optimistic you are! There are certainly ways to turn the AWR and your compliance with it to your advantage, to gain more trust from your clients and more loyalty from your workers. It may change the way you work, but it needn’t be the end of your business.

Employment Tribunal Fees
AWR Advent Calender: Myths 10-16