FAQ - Employment Information

Question
Agency worker regulations AWR and Data protection implications
Answer

There are at least two major considerations which need taking into account:

  • The length of time for which data needs to be retained.
  • Required transmission of information between Agency and Hirer of worker status.

Length of time for which data needs to be retained.

Under the Agency workers regulations, both hirer and agency have to keep a track of each worker for each customer. The act obliges the hirer to work with the agency and the agency to work with the hirer for specific reasons. The main reason is to ensure that any worker who works via multiple agencies has just the same rights as the worker who works via only one agency but nevertheless works for the same hirer over an equivalent period. This multi-partite regulation may mean that hirer and worker should know the current status of that worker.  Subsequently any other agencies involved may come to know the current status of any individual worker.

This keeping adequate data to ensure all required notifications can be given has implications under the data protection act.

The act states "Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes."

This comes under "retaining personal data (Principle 5)". From the government web site for the Information Commissioners Office. (This webpage only exists as a standard insecure webpage however you may navigate to it by pasting the following url in your address bar: http://www.ico.gov.uk/for_organisations/data_protection/the_guide/information_standards/principle_5.aspx)

Put simply, if you had cleared your legal reporting and retention obligations before, by keeping data for only 1 year (for hypothetical example), you will now need to keep the data for longer. As we have seen in other articles: although the clock runs for a 12 week period, this 12 weeks can be extended over two years by the caveats explicitly enumerated in the Agency Worker Regulations. Importantly it is not sufficient to say that the worker is no longer an agency asset. Any worker can accumulate clock weeks for a single hirer via multiple other agencies and so extend the clock in the relevant manner. That (ex) worker's data is still relevant in these circumstances. Obviously if there are other regulations you need to fulfil that deem in necessary to hold data for longer than 2 years, then you are already covered under the Data Protection Act.

Transmission of information between Agency and Hirer

The Agency Worker Regulations require both Agency and Hirer to "work together" to ensure full compliance of the act. This in its self will require regular (weekly) transfer of data between Agency and Hirer. The data protection act calls for such personal data to be transferred in a secure fashion.

It is becoming increasingly apparent that sending the data as an email attachment would contravene most company policies in this respect. Not only is the data not encrypted (by default) but there is also the certain prospect that the email will at some point be accidentally sent to the incorrect recipient.

The Ava web interface provides the facility for Agency customer's managers to have their own authenticated login and access secure pages, one of which is the customer's AWR report.

Additional information

We have a number of questions with the Department of Business and innovation relating to clarification on the AWR. The answers when they come will be published in this section of our site.

Update:

The AWR has been updated, https://www.legislation.gov.uk/uksi/2011/1941/made

We have received clarification (amongst other things, on the order in which certain conflicting provisos should be applied). These changes will be incorporated in our end of September release.

Other pages which may interest you

For the act itself here:

https://www.legislation.gov.uk/uksi/2010/93/contents/made

For reasonably readable 57 pages of information on comparison of benefits for temp workers versus substantive staff and other parts of the act then more here:

www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-905-agency-workers-regulations-guidance.pdf

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Disclaimer

Whist every effort has been made to ensure this summary article is a consistent portrayal of the Act, Added value applications accepts no liability for this content which is inevitably a much condensed interpretation and opinion based on our reading of the act and other relevant published government sponsored articles. Terms and conditions here...
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This FAQ was last updated on Wednesday, September 30, 2015

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