AWR: What you need to know
The creative industry relies heavily on Freelance talent to meet unexpected demand, cover for absences and, in these tough times, simply to remain competitive and flexible. Source specialises in recruiting creative communications talent, and we want to help you understand the AWR and its implications. To shed some light on how you can ensure you’re aware of all you need to know about the AWR, just read our simple guide below.
What are the Agency Workers Regulations (AWR)?
The EU will poke its nose into all our businesses again from October 1st 2011! If you employ Freelancers, or Freelance yourself, the new legislation affects the Freelancer, the Client and Agency relationship, and the traffic of remuneration information between the three parties.
In essence, the AWR entitle agency workers (i.e. Freelancers) to basic working and employment conditions that are no less favourable than employees recruited directly by the hirer. Some of these rights are afforded to the Freelancer from day one; others are after 12 weeks in the same role.
To complicate matters, the 12 weeks don’t need to be continuous working weeks. This means that there can be gaps in between; creating an administrative nightmare for department managers, HR teams and recruitment agencies who need to maintain a ‘count’ of the actual ‘worked weeks’. Add to this the fact that Freelancers can sometimes work in more than one role, meaning that there are sometimes multiple ‘clocks’ to count, and you’ll soon realise that a veritable mountain of compliancy checks need to be executed.
If there is a gap of more that six weeks between working periods, the clock is reset.
Now consider the ‘clocks’ that need to be counted. There are other things to be aware of too – certain personal circumstances start and stop the clock, just to make it a little more difficult to administer!
What doesn’t stop the clock?
The clock continues to tick for breaks due to pregnancy, childbirth and up to 26 weeks after childbirth, plus breaks due to a worker taking maternity leave, paternity leave or adoption leave.
What stops the clock (but doesn’t reset it)?
* Jury service pauses the clock for up to 28 weeks
* Sickness absence pauses the clock for up to 28 weeks
* Breaks of not more than 6 weeks
* Annual leave
* Industrial action
* Compulsory shutdown
What is the Client’s responsibility?
Fundamentally, there is a requirement for an employer to supply full details of the remuneration packages of staff in comparable positions within their company, in relation to the job that the Freelancer worker is engaged to perform. Simple? Not really. Consider the roles each Client has in their company. Most people, even in the same position, will be on different salaries, could have different holiday entitlements, have different responsibilities and have different performance metrics counting towards bonuses.
What’s the big deal if a Client doesn’t comply?
£5,000 per offence is a very big deal! This fine can go to the Agency, or the Client, or both if they are found to be either adopting ‘avoidance’ tactics, or just plain ignoring the regulations in relation to workers supplied via an Agency. A Freelance worker that feels that they have been discriminated against can lodge an appeal to an employment tribunal which, if upheld, will proceed to a hearing and potentially an award.
What is the Freelancer entitled to?
Day One rights:
* Equal access to on-site facilities (canteen, crèche, parking etc)
* Equal access to information on permanent employment vacancies
* Equal access to company training such as Health and Safety
Rights after week 12:
* Key elements of basic pay; overtime, shift/unsocial allowances etc.
* Annual leave above the statutory minimum
* Incentive payments linked to personal performance for work done that is directly attributed to the individual
* Vouchers/stamps with a monetary value
* Rest breaks between shifts
* Rest periods during the shift
* Pregnant workers entitled to paid time off for ante-natal appointments
Ok, I’ll just go direct for all my Freelance needs.
Clients may think about trying to go direct for their Freelancers. Nice idea in theory, but in practice it’s a little more difficult than that. Recruiters know the availability of talent, so are able to fill needs quickly. They also have a responsibility under the Employment Agencies Act to protect the Client and the Freelancer in terms of acquiring and delivering certain statutory information. Not least recruiters maintain immigration compliancy around visas and people’s eligibility to live and work in the UK. They also confirm the worker’s identity and maintain all aspects of Data Protection best practice. The last thing your HR team and/or department managers want is to have to take on this responsibility. Moreover, if it is done incorrectly, the penalties are incredibly high - £10,000 per infringement! Additionally, there is nothing to say that the rules couldn’t be extended to encompass direct Freelancers too!
If I am a Client - what do I need to do?
Don’t panic! If your recruiters are organised, financially stable and well-established, they will no doubt have everything in place to support you. For your part, ensure your agencies are aware of the AWR and know how to protect you. Check out our ’10 questions to ask your recruitment agency’. It’s important to carry out a risk assessment of your recruitment suppliers. Many will be blasé about the regulations, assuring you that it’s a ‘storm in a tea cup’ and that ‘nothing will come of it’. This isn’t acceptable. Your suppliers must have processes and protocol in place to help keep you (and themselves) compliant.
What should your recruitment agencies be doing to support you?
Firstly, they should make it easy for you – whether you are a Client or a Freelancer. Information should be available from them to help you stay informed.
It would be easy for recruiters to pass all responsibility to a Client; requesting reams of information about every job role, promotion criteria, the benefits around those roles and performance management metrics etc. Clients would then need to update all their suppliers with every little change around their remuneration packages, and this is not a practical solution for anybody!
Instead, whether you are a Client or a Freelancer, look to your agency to take the responsibility away from you and manage it themselves. After all, you pay them for their expertise not just in talent finding but also in terms of legal compliancy and efficiency management.
Ask your recruitment agency about AWR!
We strongly suggest that Clients talk to their recruitment agency suppliers and apply the rule that if a Freelancer works under your direction whilst on site, they are ‘most likely’ to be ‘in scope’ and therefore the AWR will apply to the relationship between the Agency supplier, the Client and the Freelancer.
Read our guide: ’10 Questions to Ask Your Recruitment Agency’ for more information.