Contract Extension - working thru Ltd Company - Agency added terms related to AWR

[mgarg]

Hi,

I have been contracting thru Ltd company since Sept 2010 with same client and contract is extending until Sept 2012.

In latest extension agreement, agency has put a condition:

Agency Workers Regulations (AWR)
For the avoidance of doubt, all AWR holiday pay entitlement is incorporated into the Fee Rate contained within the Schedule.

My understanding was that I am out of AWR as working thru LTD company but agency says it does not matter and applies to both Ltd Company & Umbrella contracts.

Not sure, should I accept or not.

Please advice.

[northernladuk]

Plenty of info on the right hand side nav bar about AWR including myths and statements. Might find what you need there...

Agency Workers Regulations AWR / Directive for IT Contractors AWD 2011

This has also been discussed at length in these forums a search might help as well...

[mgarg]

Plenty of info on the right hand side nav bar about AWR including myths and statements. Might find what you need there...

Agency Workers Regulations AWR / Directive for IT Contractors AWD 2011

This has also been discussed at length in these forums a search might help as well...

Thanks for the responses. I did find same links but didn't have time to go trhough all of them. I do read some of the but it was still not clear.

It's bit urgent as I have to accept or reject contract extension in few hours time. If anybody can provide advice quickly is much appreciated.

[stek]

Waiting for NLUK.......

[northernladuk]

Thanks for the responses. I did find same links but didn't have time to go trhough all of them. I do read some of the but it was still not clear.

It's bit urgent as I have to accept or reject contract extension in few hours time. If anybody can provide advice quickly is much appreciated.

I am sorry... you need an urgent answer that could be in the links to the right but can't be bothered to read them so would rather risk your extension while you wait for random people you don't know on a forum to do it for you?

[mgarg]

I am sorry... you need an urgent answer that could be in the links to the right but can't be bothered to read them so would rather risk your extension while you wait for random people you don't know on a forum to do it for you?

No exactly, but apologies if you have felt so. I am going through those links as well as other resources and will continue to do so. As there are lots of and ambiguous as well, so I thiought to get others opinion in mean time.

[cojak]

Actually this is new enough for confusion.

I'm not sure of the answer. If you have Qdos insurance I'd ask them as they also look at contracts.

If you're with PCG I'd call their helpline.

My gut feeling is that this refers to you Ltd company, I'm certainly still paid by myco when I'm on holiday. But you'll need to check.

[northernladuk]

No exactly, but apologies if you have felt so. I am going through those links as well as other resources and will continue to do so. As there are lots of and ambiguous as well, so I thiought to get others opinion in mean time.

I would start off looking at the articles about who is covered by this. There are a couple of articles explaining how it affects contractors so better to start there.

You could also try googling your specific question. I tried..

AWR holiday pay entitlement Limited company - Google Search

and got some pretty succient information

[northernladuk]

A common theme that is mentioned in most posts I am reading is as follows...

1.3. Are limited company contractors protected by AWR?

Depends. Contractors who are not genuinely self-employed will be protected by AWR. The courts will look at your relationship with the contractor and how he or she performs services for you to determine whether they are genuinely self employed or not. The tests will be similar to tests that determine IR35 status. If a limited company contractor is genuinely IR35 compliant, they should be out of scope of AWR. For example, if they have no fixed working pattern and can choose how and when they perform the services (being able to send a substitute to perform the services on their behalf should they wish to do so). If, however, the contractor is expected to perform services personally (i.e. can’t send a substitute), and you control how he/she performs the services, they will most likely be in scope of AWR.

1.4. If we have contracts with limited companies directly, would the limited company contractors be protected by AWR?

No. An agency would need to be involved in the contractual arrangement for AWR to apply. However, if a limited company is considered by a court to be “in business involved in the supply of temporary agency workers”, it could potentially be considered a temporary work agency which would bring the contractors in scope of AWR. It seems unlikely that a limited company would be considered a temporary work agency if it only supplied one contractor but we will need to wait and see how the courts interpret this.

From this I would read that your agent is right and wrong. He is right to say it covers contractors but only if they are caught by IR35. If they are clearly not then it won't apply... seems to be the mantra....

and if I had to take a wild guess at what the agent is trying to do here they are trying to make it absolutely clear that the rate they pay you is inclusive of everything so you cannot come back after 6 months and demand payment for any holidays you didn't take. The fact we don't get paid holidays in an outside IR35 contract is probably why it is getting confusing.

This is me thinking out loud after reading a few articles to give some food for thought and is no way solid advice I am afraid.

[mgarg]

A common theme that is mentioned in most posts I am reading is as follows...



From this I would read that your agent is right and wrong. He is right to say it covers contractors but only if they are caught by IR35. If they are clearly not then it won't apply... seems to be the mantra....

and if I had to take a wild guess at what the agent is trying to do here they are trying to make it absolutely clear that the rate they pay you is inclusive of everything so you cannot come back after 6 months and demand payment for any holidays you didn't take. The fact we don't get paid holidays in an outside IR35 contract is probably why it is getting confusing.

This is me thinking out loud after reading a few articles to give some food for thought and is no way solid advice I am afraid.

Thanks northernladuk for your thoughts.

I have been reading stuff all through last evening and read PCG's AWR guide as well. My contract with agency is business to businnes contract to provide my services and as per PCG guide I should not be in scope for AWR if contract is B2B.

I have told the same thing to Agency and now they have agreed to remove this condition.

Thanks a lot everyone.