Swedish Derogation
Outside of the scope for the purposes of pay – Swedish Derogation
An Agency Worker who is employed under a permanent contract of employment can be taken outside the scope of the AWR in relation to equal pay rights if the conditions of Regulation 10 (commonly know as Swedish Derogation) are met. One key obligation of Regulations 10 is that the employer must pay the employee a minimum amount of remuneration in respect of any period when the employee is not working on assignment but is available to do so.
- Pay between assignments - In effect this means
that when an assignment ends and while a worker is looking for a
new assignment they must be paid the greater of 50% of the
highest level of pay paid to the Agency Worker in the 12 weeks
preceding the end of the last assignment or the National Minimum
Wage until the start of their next assignment.
- This minimum payment obligation is limited to a period of an aggregate of four calendar weeks over the lifetime of the contract. Therefore, if there are no periods during the employment when the employee is not working on assignment the employer will have to pay the employee 4 calendar weeks' (i.e. 28 days' worth) of pay at the above rate before the employment can be terminated or made redundant.
- As the amount of pay to be paid between assignments must be no
less than the national minimum wage.
- The Swedish Derogation provisions apply only to the equal pay elements, other conditions, e.g. rest periods, access to facilities, notification of relevant vacancies, must all be complied with.
Regulation 10 also lists out a number of other conditions which must be satisfied in order for the terms of the derogation to be met. One key condition is that the contract of employment must contain a statement confirming that during the employment the employee has no rights under the AWR insofar as they relate to pay.
