Agency Workers Regulations and the Swedish Derogation model!!!

October 1st has been a dramatic day in the course of employment law; it saw the increase in the Minimum wages and the introduction of the Agency Workers Regulations. The implementation of the Agency Workers Regulations, in particular, have left many employers wondering to what extent they are responsible……..

 Who is responsible for ensuring the Regulations, are met?
* Recruitment Agencies of temporary staff will need to be provided with up to date copies of the employer’s terms and conditions, to ensure their agency worker(s) receive equal treatment.
* It is the employer’s statutory duty to ensure that all agency workers on site can access the communal facilities, such as a restaurant/ canteen, car park, creche and are able to view job vacancies from the start of their assignment.
* It is the responsibility of the Recruitment Agency to find out hirer information about basic pay and working conditions offered to permanent members of staff, when it is implied that the agency worker will be in the same job for over 12 weeks.
The agency worker thus would be treated as if they had directly been recruited for the job. The hirer has liability for preserving these rights.
How will the Regulations be enforced and what are the sanctions?
There are anti-avoidance provisions to be considered, however these new rights offered by the Regulations will be enforced via employment tribunals.  Any claims would need to be brought within three months of the initial detriment.
Compensation -
* is subjected to a min of two weeks’ pay
* awards for injury to feeling are excluded via statue
* claims of preventing these regulations can see potential awards of £5000.
Employers have until December 2011 to be fully incompliance with the regulations. It could be up to 18moths before news of cases on the AWR will develop and mould the legislation in definitive terms.

The Swedish Derogation model!

The ‘Swedish Derogation’ model has been cited as a potential solution to the Agency Workers Regulations.

What is the Swedish Derogation model?
The name has links to the opt-out clause negotiated by the Swedish delegation during the EU summit.
Under Article 5(2,) the Agency Workers Regulations enable Governments to exempt any temporary agency worker who has a permanent contract of employment. This contract can be with the Recruitment Agent, or by an umbrella company. 
The conditions for the Swedish derogation stipulate that,
* the worker must be employed with a permanent contract, which was valid before their first assignment.
* the agency worker must be paid in full for up to 4 weeks in between assignments, during the length of the contract
* available work must be offered to the worker
* the rate of pay in between assignments must be at least 50% of the average assignment pay
* the worker is entitled to 4 weeks pay before the contract is terminated.
Is this an effective solution to navigate round the AWR?
The Swedish Derogation model does offer a solution to companies using temporary workers, who rely on these workers to top up staff levels.  More notably however the model does no completely side step the AWR, as it still gives the agency workers a structure of contract and security.
Using the Swedish Derogation model  - the concerns / advice!
Concerns have been expressed with the model regarding the additional costs that will be imposed upon recruitment agencies and umbrella companies, along with the obligations it puts on them.
Many recruitment agencies are considering the Swedish Derogation for fear of losing business as an alternative.  They fear that hirers may look for ways of managing seasonal times and over flows of work with their current work force, rather than using a third partie.
If you need any assistance with understanding the AWR or your requirements when using Agency staff, for more than 12 weeks please call us.
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Changes to unfair dismissal rules

Unfair dismissal rule changes were announced on 3rd October 2011 by Chancellor George Osbourne. The length of service an employee must have before bringing a claim of unfair dismissal will increase from one year to two years, from 6th April 2012.

This is one of the changes suggested by the Government as part of the ‘Resolving Workplace Disputes’’ agenda – published earlier this year, with the aim of creating conditions which allow businesses to grow in particular the SME’s.
The effects of this piece of legislation alone are expected to reduce the unfair dismissal claims by approx 2000 a year.
Some fears have been expressed that no qualifying period has been put in place to bring forward a discrimination case, this therefore allows dismissed employees to claim that a dismissal was made for reasons of discrimination!
We could also see an increase in the amount of unfair dismissal cases, or constructive dismissal cases being brought forward just before the reforms are brought in for employees with between 1 and 2 years service.
Other Changes Expected
A fee will also be introduced for lodging a claim at an Employment Tribunal. This is intended to reduce the number of claims being brought before tribunal, which will be advantageous to the employer.
* Fees will be introduced from in 2013
* Indications are that the fees will be between £100 and £250 to lodge a claim, with a further fee of charged of £1,000 being charged when the case is listed for a hearing.  If the claimant wins, the fees will be refunded. 
* Possible reduction/waived fees for those on low income or without income
It is expected that the proposed changes will save UK businesses £6 million per annum.
If you need any assistance or advice we can help.
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Stress – main cause for sickness and absence!

The recent CIPD/Simply Health Absence Survey has identified stress at work as the prime cause of long – term sickness absence. The survey shows direct links with job security for both manual and non-manual employees and pressures caused by mounting workloads. 

The report recognised that job security and planned redundancies were concerns leaving more people at risk of suffering from a mental health problem.
Figures show that:
* A 51%, rise in employees seeking help with mental health issues, compared with 32% among those that are not planning redundancies.
* Almost half (48%) of respondents said an increased volume of work was a cause of stress-related absence in their organization
* In the public sector, 50% of respondents reported an increase in stress-related absence.

Pressures are also being caused by measures taken to avoid redundancies, such as pay freezes, since employees are still experiencing an increased level of bills at home.

This places responsibilities on Line Managers and Business Owners to develop open communication channels with their employees throughout change processes and be available to answer questions or concerns.  It is important to be able to recognise the early signs of members of staff feeling excessive pressure or not being able to cope at work.  Appropriate support should be considered to assist members of staff during this time. 

Companies benefit from a good HR department, they can help employees take steps to manage/reduce workloads, review opportunities for reviewing health and wellbeing benefits and consider appropriate levels of support which may be on a temporary or permanent basis i.e. flexible working.
If you need any assistance or advice on how HR relations can help to combat this we can help.
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Internships and Employment

Internships and work experience offer excellent opportunities to bridge the gap between education and the workplace.  They allow businesses to access a wider range of talent, see individuals in a work situation and benefit from viable suggestions and proposals they may suggest.
One of the topical questions at present is…. Whether should students be paid? 

An entitlement to the National Minimum Wage (NMW) does not depend upon the job title given to a student, but on whether they can be considered as a “worker”.

What is Work Experience?
A limited amount of time that a student is working with an employer to learn about the working environment, to put into practice skills learnt and to watch and learn

What is an Internship?
An internship often requires higher levels of qualifications than work experience and allow the student to gain experience for a professional career.

Entitlement to NMW.
All students carrying out work themselves are entitled to payment for their work at a minimum level of the current NMW.
Current NMW rates
£6.08 per hour for a worker aged 21 and over
£4.98 per hour between the ages of 18 – 21 yrs
£3.68 per hour between the ages of 16 – 17 yrs

The exemptions are:
* Work shadowing, where the student is watching, listening and questioning, but does not carry out the work unsupervised
* The work experience is being carried out as part of a higher or further education course
* The work placement does not exceed one year
* Students are of compulsory school age
* Voluntary Workers – however they should receive expenses and limited benefits i.e. travel and lunch payments.

Fairness is important in this relationship when a student may be experiencing the working environment for the first time.  Businesses need to ensure that they are complying with current legislation.
If you need any clarity or advice we can help.
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Health & Safety

FAULT FEES – PART 2
We mentioned back in February that the HSE was considering introducing charges for non-compliant companies.
What do you need to put in place? 
 
The proposal has been documented and is now in a 3 month consultation phase, deciding upon how the HSE plans to recover costs for its dealings with businesses that fail to comply with health and safety laws.
The Government will allow it to levy fees on companies where, during an inspection or investigation there is found to be a material breach (i.e. the requirement to rectify the breach is formally made in writing).
This fee will be set at the rate of £133/hour plus any costs associated with specialist support. It is expected that an inspection which results in a letter will cost around £750 whilst an inspection resulting in an enforcement notice will cost around £1500.

If you don’t already have a good grasp on your H&S issues, now is a good time to revisit them.
If you require any assistance with any health and safety issues please contact either Rialto Health & Safety or Black Dog HR and we will be only too pleased to help. 
If you require any assistance with any Health and Safety issues please contact either Rialto Health & Safety or Black Dog HR and we will be only too pleased to help. 
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01933 666990     01280 817341    

Special Points of Interest

The National Minimum Wage has increased from 1st October 2011 -
* £6.08  for the adult rate
* £4.98  for the 18-20 rate
* £3.68 for the 16-17 rate
* £2.60  for the apprentice rate

When the minimum wage was launched in 1999, the main rate was £3.60, it is now set at £5.93 per hour.

What are the effects of the Agency Workers Regulations?
The AWR has left hirers of agency workers questioning whether they can use their internal member so staff to satisfy their operational needs after a 12 week time scale.
Risk - If a repeated pattern of 11 weeks employment is proven to avoid the AWR the company can be liable for up to £5000 in compensation
Recruitment companies are considering hiring workers directly to avoid the effects of the AWR.

Default Retirement Age (DRA) Abolished!
1st October 2011 has seen the end of the DRA which means that most employees can no longer be dismissed on the basis of reaching retirement age.

Highest unemployment figures for 17 years!
The Labour Force Survey has reported the current unemployment rate to be 2.57 million, making it the highest for over 15 years.

October - a Bank Holiday?
The Government is considering proposals to scrap the May Day Bank Holiday and replace it with a national holiday in October! This is being considered as a result of calls from the tourism industry to spread out holidays more evenly. Some suggested names for the bank holiday have been UK Day or Trafalgar Day.

Landmark ruling in High Court in Personal Protective Equipment (PPE)
The High Court has issued an important ruling on PPE. Employees working in damp condition for long periods of time should be provided with protective clothing. This leaves employers having to reassess their policies and procedures relating to PPE.

Additional Bank Holiday in 2012
An additional bank holiday has been granted on Tuesday 5th June 2012, to mark the Queen’s Diamond Jubilee.
The Bank Holiday at the end of May 2012 will be moved to Monday 4th June to make a 4 day weekend.

1 In 3 Workers expected to Opt-Out of Auto-enrolled Pension Schemes
When asked why workers gave the reasons of: Not being able to afford it, not trusting the government scheme and not trusting pension schemes.

State Pension Age to increase to 66 yrs from October 2020
Proposals have just been submitted for the state pension age to increase to 66 yrs from October 2020 for both men and women.