We get an expert to look at contractors’ AWR dilemma, i.e. whether to opt in or to opt out. It’s well worth reading.
Employment Agencies and Employment Businesses Regulations (Or to Opt Out or Not)
In April 2004 the Government introduced some new regulations to (on the face of it) increase the regulation in the recruitment industry. The Government took the view that there was exploitation of workers in some sectors (E.g. Hotel and Catering). Therefore they needed tighter rules.
Apparently the first drafts of these revised rules saw light of day in 1999. Since that time ‘Europe’ and various interested parties have lobbied and counter lobbied to get what we have now.
So why are Agencies asking me to Opt in or Opt Out?
They designed these new regulations to prevent exploitation of workers. So it began to cover much of these e.g. statutory holidays, salary payments and much more.
The regulations then went further to include preventing recruitment agencies from charging temp to perm fees, temp to temp fees and other restrictive covenants.
However, the regulations also seem to cover (legal advice is 70% in favour that it covers them) personal service companies and people working through employee management facilities (E.g. umbrellas).
The regulations also meant that all parties supplying staff to clients (Agencies, Direct and the companies (brolly or personal service) also had to gather far more formal information relating to the person they place. For Example, Entitlement to work data (passports, permits, visas), formal proof of qualifications, references and more Health & Safety assessments.
The regulations place a fairly sizeable risk and administration overhead on all of the parties. As with most legislation, they knew it was un-workable for ALL scenarios. However, it still came into force.
Bodies such as the REC, PCG and ATSCO lobbied for a way in which the people they represented could work with these rules.
Thus, the ‘Opt Out / In’ clause also came into force to enable the regulations to be sensibly managed.
Contractors’ Group IPSE
Contractors’ Group, IPSE, at the time, will have been concerned with the IR35 implications of the regulations.
For a true contractor ‘in business of my own volition’ then it would almost certainly look like they were ’employed’ by the end client. It would thus damage the IR35 defence.
From certain sectors of the recruitment industry it was also quickly realised that these regulations would create significant commercial risk through increased admin and more worryingly loss of fees in certain scenarios.
The DTI finally agreed to the Opt Out scenario whereby a contractor can choose to Opt Out of the regulations.
Thus he or she would not look ’employed’ from an IR perspective (the PCG concern). Also, the Agency would have its commercial risks reduced.
What does AWR mean to me?
You may have received an Opt Out clause from your Agency.
The Agency can ask you to Opt Out but legally you are not obliged to do so.
However, the flip side is that if you Opt In then the Agency has to collect far more information about you and your background.
This will inevitably delay the forwarding of your details to the client and may even result in a lower rate given the extra admin needed. Whilst this is all going on the next guy has Opted Out and he has got the contract!
In simple terms the Opt Out allows the status quo to exist and work as we have prior to April 04.
I work via an Umbrella/Direct. Does it affect me?
The short answer is yes.
It will touch anyone working as some form of temp/contractor for an end client either indirectly (Agency), or even direct. Working through an Employment Management service (shades of brolly) means that the Agency will want the Employment Management Company to opt out.
To enable the company to do this, the agency will ask an individual working through this route to Opt Out.
It would affect even a one man company working direct with an end client.
There are IR35 issues to consider in this scenario as regards the AWR dilemma.
If a spouse is employed, for instance, then technically they could be supplied to the client. Thus the regulations may be in force.
Substitution clauses in contracts also allude to this. Thus even a one man company solely working direct should be aware (at worse) of the regulations.
AWR Dilemma Summary
The regulations are designed to prevent exploitation of workers and to catch disreputable companies. They mainly affect those organisations in the recruitment industry. However, the Opt Out scenario has created some confusion for contractors to clearly know what they are signing up to.
Legally an Agency must take much more information from the individual if they refuse to Opt Out. For the ‘knowledge based’ industry this means delays, risks (for the Agency) and increased costs. The Opt Out currently provides a mechanism to maintain the current way of working.
These new regulations will only protect vulnerable temporary workers if the DTI is able to enforce them. We would no doubt all prefer this to be the case. So, reputable companies that provide a genuine service to the temporary worker will survive.
This is the AWR Dilemma.
To get more valuable information on how to deal with recruitment agencies click on Contractor Recruitment Agencies.
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