PART 1: DATES, DEFINITIONS AND OBLIGATIONS
The UK government implemented the EU ‘Directive on Conditions for Temporary Workers’ from 1st October 2011 through the Agency Worker Regulations 2010. These regulations require the agent to pay an agency worker (who may have a full employment contract with the agency or more commonly have a contract for services with the agency that then places them with the end user client): • the same basic pay plus allowances such as shift allowance, and bonuses that are directly related to the personal performance of the agency worker • the statutory 4 weeks’ holiday - any additional holiday entitlement may be paid at the end of the assignment or rolled up into the hourly rate (rolling up is not permitted for the 4 weeks’ statutory pay) • as a comparable employee of the client after 12 weeks placed at that client. Specifically excluded are the right to contractual benefits such as occupational pensions and sick pay. The continuity of the 12-week period is only blocked by a break of 6 weeks or more excluding any breaks for statutory leave and only if the agency worker begins a substantially different role with the hirer. • The regulations also allow, after 12 weeks’ placement at the client, those agency workers who are pregnant, have recently given birth or are breastfeeding the right to reasonable paid time off to attend ante-natal appointments and adjustments to working conditions and hours. COPYRIGHT © 2021 THE CHARTERED INSTITUTE OF PAYROLL PROFESSIONALS In addition, from the start of the assignment the agency worker must have: • information about vacancies the client has, to give them the same opportunity as other workers to find permanent employment • equal access to on-site facilities such as child care and transport services. Employment tribunals have jurisdiction to hear complaints from agency workers. Agency workers are entitled to lodge a complaint if they consider their rights under the regulations have been breached or that they have suffered a detriment for asserting their rights under the regulations. Complaints must be lodged within 3 months from the date of the alleged breach or detriment. A maximum £5,000 fine split between the agency and the end user will be payable if the regulations are flouted. PAYE/NICs - in general terms, standard procedures apply to the agency paying the worker. Even if the worker is engaged under a contract for services the agency will be required to operate PAYE and deduct Class 1 NICs as if the worker was employed by them, however PAYE and NICs do not apply if the worker provides their services as an actor, singer, musician or other entertainer, or as a fashion, photographic or artist’s model. No printing, copying or reproduction permitted. Where there is a liability for NICs it follows that the worker can be entitled to SSP, SMP, SAP, SPP and ShPP. A P45 should be issued to the worker at the earlier of: • the end of the relationship between the agency and the worker, and • the end of a period of three months during which the agency makes no relevant payments to the worker. Some agencies operated a salary sacrifice arrangement in respect of travel and subsistence to the hirer’s premises arguing that these are all temporary workplaces so are not normal
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