The Swedish derogation

Under the AWRs, there is one exemption from the right to equal pay (although not from the right to equal treatment on holidays and working time). The right to equal pay will not apply to employees of an agency who have the right to be paid between assignments where the agency is unable to find work. This is known as the Swedish derogation. For this exemption to apply:

• The individual must have a contract of employment with the agency, which is not fixed term and which includes terms governing: minimum pay rates, location, hours, maximum hours expected on an assignment, minimum guaranteed hours (which must be at least one hour), type of work;

• The individual must be paid between assignments — at least 50% of the pay received on the last assignment or the National Minimum Wage for the hours worked on the last assignment, whichever is the greater;

• The agency must try to find suitable assignments when between assignments; and

• The contract cannot be terminated until there has been an aggregate of at least four calendar weeks between assignments when the individual was not working but was being paid by the agency.