The Agency Workers Regulations

Questions raised by agencies/companies

We have put together questions with relevant answers that may assist agencies/hirers in respect of the AWR when working with Gabem Management Ltd (GML). These have been compiled from questions that we have been asked by a number of agencies/hirers.

If you have a question that isn't answered here, please get in touch either by phone on 01798 861100 or by email at enquiries@gabem.com and we'll do our best to answer as soon as possible.

Q: What solutions are we providing in respect of the AWR?
A: We will be providing the Classic/Comparator and the Swedish Derogation model. We will also continue to provide the CIS/Self-employed offerings which are outside of the scope of the AWR

Q: How will we ensure that agencies and their clients are protected from claims under AWR from workers who are engaged through our self-employed offering if HMRC subsequently find that a worker does not pass the test for self- employment?
A: Self-employed workers are outside the scope of the AWR. If a worker shows interest in our self-employed offering, we send paperwork to them outlining the requirements in respect of being genuinely self-employed. Once the application form is completed by the worker and received by us a member of our Operations Team contacts the worker and completes an employment status questionnaire over the phone, based on HMRC’s guidelines. If we are satisfied that the worker is genuinely self-employed and therefore is in business in his own right a contract is sent to him with a copy of the completed questionnaire populated with answers given over the phone together with other relevant paperwork. The questionnaire is repeated at the start of each new assignment or if we have not heard from the worker within 3 months. If we are not satisfied that the operative is genuinely self-employed, we will not supply that worker on a self-employed basis.

Q: How do we intend to comply fully with AWR in providing equal treatment to that of a comparable employee after the qualifying period?
A: We will comply fully with the AWR and will have contracts in place to reflect this. As stated above we will provide the Classic/Comparator contract and the Swedish Derogation contract. In relation to the Classic, we will request information from the agency/hirer in respect of the comparator, rates of pay and holiday entitlement for example. We can provide a form that details the information we require. If this will assist please let us know and we can email a copy to you for ease of completion. We will also obtain information from the operative in respect of the assignment.

Q: What are our intended compliance processes?
A: We will have the necessary contracts in place and paperwork to obtain and record the required information. We will have rigorous IT systems that will highlight certain key points at which we either need to obtain or chase for further information. We will also ensure that we have the relevant paperwork to reflect the operatives’ current status.

Q: Where an agency worker has a higher hourly rate than the comparator but the comparator has a higher holiday pay rate will we use one pay element to offset another?
A: No. For the calculation of week 12 entitlements BIS has confirmed that one pay element cannot be used to offset another.

Q What solution/contractual changes will we provide if our operative does not meet the entitlements of the comparator?
A: In these circumstances our operative may choose to sign up to the Swedish Derogation model. If our operative operates through our Classic model, we will not reduce the hourly rate, but will maintain the higher rate which the agency worker is on. In relation to holiday, our contracts already provide for 28 days paid statutory holiday. If the comparator is entitled to more than the statutory amount of holiday, we will make an additional one-off payment in respect of that additional holiday entitlement at the end of the assignment (as per the Guidance from BIS). As this will vary from assignment to assignment, we do not intend to change the contract itself, but will confirm the variation by way of a separate letter.

Q: How will we calculate week 12 entitlements for our operatives per each payment vehicle we offer (i.e. CIS / Umbrella)?
A: In respect of the CIS/self-employed offering we will not have to calculate any entitlements as they are outside the scope of the AWR. The rate and hours are received, processed and then paid to the operative. With a worker within construction we withhold the CIS tax on account which is then paid to HMRC.
For workers on the Swedish Derogation model, we are required to offer them equivalent holiday and rest break entitlements but we do not need to pay for any additional holiday entitlement over and above the statutory minimum.
For workers on the Classic model we will seek the relevant comparator rates at the earliest possible opportunity, and will ensure that from week 12 onwards workers receive their full entitlements.

Q: What communication methods are we going to adopt to ensure the Regulations are met and where applicable that parity pay is being met?
A: Contracts will be in place with the worker in respect of the Classic model and Swedish Derogation together with terms agreed between us and the agencies that we work with. Information will be sought from the operative in respect of the assignment and also from the agency in regards of the comparator, rates of pay and holiday pay etc. We will send out forms to the operatives and agencies requesting relevant information.

Q: What would be the impact of you using us to provide temporary contractors under the AWR?
A: As far as obtaining information is concerned in respect of the operative the agency/hirer will still have a requirement to do this regardless of whether the agency is using an intermediary, such as Gabem. However, you will not be responsible for other administration requirements that have to be complied with and undertaken in respect of our operatives as we would be undertaking those on your behalf. If our operatives are supplied to you under our Swedish derogation model, there is no need for concern about pay rates for comparators - it will reduce the amount of information you need to obtain from the hirer.

Q: What information or assistance do we require from you?
A: We will need to ask agency/hirers for information about the current assignment and related terms of individual or groups of workers, and for comparator information. Also, if possible, details about prior assignments though we appreciate you may not have this information. We can provide a form showing the information we require a copy of which can be emailed to you for completion

Q: How do you identify the contracting status of the operative from the legal entity you are paying?
A: The contract is with Gabem Management Ltd (GML) – all payment options are through the one company GML. In respect of identifying the status of the operative we can be flexible and be able to accommodate your requirements and adapt with your systems. We can inform you when we send out initial information as to whether the operative is an employee of GML or is CIS/self-employed. When payment information is received we can inform you as to which contract the operative will be working under. If we have the relevant information we can provide this before the payment stage. If it assists payments in respect of the CIS/self-employed workers can be paid into a separate bank account. We just need to be informed of your specific requirements.