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Government issues final guidance ahead of implementation of agency worker regulations

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The Department for Business, Innovation and Skills (BIS) has published the final version of its guidance to accompany the Agency Workers Regulations (AWR), four months before the new rules come into force on 1 October.

The previously released guidance has been edited and re-issued, due to the need for additional clarity on key issues.

The Recruitment and Employment Confederation (REC) urged agencies and hirers to look on the publication of the final guidance as a reminder to begin planning in earnest for AWR, if they have not already done so.

Commenting on the new guidance, Gillian Econopouly, the REC's head of policy, said: "While we did not get all the improvements we had hoped for, several issues have been clarified within the guidance and we are pleased that BIS has taken into account some of the critical questions raised by REC members."

These include further clarification about in-house banks, which explains the impact of the Conduct Regulations; asserting that the 12-week clock is only re-set by breaks of more than six weeks (rather than six weeks or more); and a clear statement on workers placed in a permanent job being completely out of scope.

However, the REC cautioned that concerns still remain, in particular about the 'Pay between assignments' or 'Swedish' derogation. The latest guidance indicates that workers on a pay between assignments contract are entitled to equal treatment in relation to working time and annual leave, after the 12 week qualifying period. This means under such a model, the worker's entitlement to leave over and above the statutory minimum is entitlement to the leave only and not to payment for the leave.

Gillian Econopouly added: "The clarification on annual leave entitlements under the pay between assignments (Swedish Derogation) model could make those who considered this as a possible option think again about the commercial impact.

"While in one way this helps make the rules clearer, the requirement for such contracts to be subject to a minimum of one hour per week remains muddy and could have been much more explicit. Some recruiters may also be disappointed that the provisions for ending a pay between assignments contract have not been further clarified.

"However, it is important to remember that guidance does not have the same legal weight as the actual regulations, so it must be viewed in this context. No guidance document will ever provide all the answers, so what is important now is that agencies work with their clients to assess the likely impact of AWR and put plans in place for October.

"This will not only help minimise the disruption to each business, but can also create a positive advantage for agencies who can demonstrate their understanding of AWR and a clear plan for managing it in their agency."