Agency drivers lose ‘Swedish derogation’ test case challenge

A legal challenge by agency drivers against a recruitment firm’s use of the ‘Swedish derogation’ opt-out from the Agency Workers Regulations (AWR) has been lost, in news relevant to clients of the HR support services of Employee Management Ltd (http://www.employeemanagement.co.uk).

The drivers on agency contracts with the recruitment firm claimed that AWR rules that entitled them to pay and conditions on a par with that of permanent employees after 12 weeks had not been met by the agency. The claim particularly challenged the compliance of the recruitment firm with the Swedish derogation, also referred to as Regulation 10, which has been law since October 2011 as part of the AWR.

The clause has become much-favoured among some bosses looking to bypass elements of the AWR, as it allows them to avoid having to give agency staff pay and conditions equal with that of permanent employees after they have been employed for 12 weeks, by classing agency workers as permanent agency staff. The agency then contracts out the workers to the employer.

The opt-out also dictates that a specified ‘minimum amount’ of pay between assignments must be paid by the temporary work agency to the agency worker. However, lawyers for the recruitment firm were able to show that new contracts incorporating Regulation 10 had been successfully implemented by the firm, meaning that they were in full compliance with the AWR.

Clients of employment law services that operate in the recruitment sector should pay particular attention to the case, which is one of the first to address the effectiveness of Regulation 10. Businesses that may depend on the ‘Swedish derogation’ are advised by our human resource consultants to ensure the compliance of their contracts of employment with Regulation 10, also making sure that the implementation of such contracts is in line with statutory requirements.

The right contractual wording and approach are vital for companies that rely on Regulation 10, particularly those that may use workers on hundreds of such contracts. Employee Management Ltd’s (http://www.employeemanagement.co.uk) employment law specialists can guide you through all of the essential legal aspects of writing staff contracts whilst ensuring that they work in the best commercial interests of your business.

Editor’s Note: Employee Management Ltd (http://www.employeemanagement.co.uk) is represented by the search engine advertising and digital marketing specialists Jumping Spider Media. Please direct all press queries to Louise Byrne. Email: louise@jumpingspidermedia.co.uk or call: +44 (0)20 3070 1959 / +34 952 783 637.


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