Liability for the AWR generally rests with the party responsible for the non-compliance. Claims for ‘Day 1 rights’ involving access to facilities and amenities and to be notified of vacancies should sit with the hirer. Claims for detriment lie with the party who has subjected the worker to said detriment. A key area where problems may arise lies with the 12-week rights.
12-week AWR rights
The AWR gives agency workers the right, after a 12-week qualifying period, to the same pay and basic working and employment conditions as if they were engaged directly by the hirer. An individual who does not receive the right level of pay may look to the agency or umbrella that pays the worker. However, the agency or umbrella will be reliant on information about the rights provided by the hirer.
Actual liability is therefore something for a tribunal to work out, looking at who is responsible based on the facts. Practically, if an agency sets pay rates in reliance on information provided by a hirer, one expects the hirer to be responsible. Equally, if an agency fails to act upon the information provided by a hirer, one expects the agency to be liable. But a word of caution, the stance taken by the courts in these scenarios is to focus first on ensuring that the agency worker is compensated, secondary consideration is to determine to what extent the parties are liable.
Mitigating risks
An agency can protect itself against liability for 12-week rights by making sure that they can evidence taking reasonable steps to obtain information from hirers regarding applicable pay and conditions. When they have received the information from hirers, they also need to evidence the application of this or passing it on to an umbrella.
The position outlined above only regards the liability under the AWR. Agencies should therefore also be careful to check contractual liabilities. This is to ensure that the agency is aware of all steps required to be taken to obtain AWR information and is not exposed to liability caused by third party actions.
An agency may become aware of an AWR claim from a complaint by a worker, notification by a hirer or when notified by ACAS. AWR claims usually have a clear monetary value, so getting advice and addressing matters early can be essential to the refinement of the areas and figures in dispute, and potentially early resolution.
For more information on Agency Worker Regulations get in touch, or see our webinar. For rapid advice on any recruitment or employment law matter, call us on 01273 236 236 or email us at info@lawspeed.com.
