The Agency Workers Regulations 2010 came into force on 1 October 2011. They give agency workers the right to some of the same basic working and employment conditions as staff who are directly employed by the University (subject to certain eligibility conditions). However, they do not do not impose an employment relationship between the agency worker and the University and they do not entitle them to full equality.
These Guidance Notes outline the legislation and the actions to be taken by managers in order to comply with the legislation.
Agency workers are staff who are supplied by a temporary work agency to work temporarily for and under the supervision of a hirer; and who are contracted by the agency to perform work/provide services personally. Agency workers either have a contract for service or a contract of employment with the agency who finds them work. This work is often called ‘temporary work’, 'temping' or ‘agency work’. The University (the “hirer”) pays a fee to the agency, and the agency pays the worker’s wages.
Flexibility for both worker and hirer is one of the features of agency work. Agency workers have the flexibility to take up and leave jobs at short notice. Hirers have the flexibility to finish temporary work without being liable for unfair dismissal or redundancy pay.
Areas which are outside the scope of the Agency Worker Regulations include all directly employed casual staff, managed service contracts (i.e where the hirer contracts with another firm to provide a service which is staffed and managed by the other firm), contracts with people who are genuinely self-employed, individuals on secondment or loan from another institution and (while they might come from employment agencies) the introduction of workers to employers for direct or permanent employment.
The Regulations give agency workers two rights:
The right from day 1 of their assignment to equal access to employment opportunities and collective facilities, and
The right after undertaking the same role, for the same organisation for 12 continuous weeks to the same basic working and employment conditions.
3.1 Day 1 Rights
From the first day of their assignment agency workers are entitled to be treated no less favourably than a comparable worker or employee in being able to access such facilities as:
Cafes, restaurants and common rooms
Gym and leisure facilities
Information on job vacancies
This does not mean that agency workers have enhanced access rights; for example, where applications for the nursery or car park involve joining a waiting list, the agency worker should be given the opportunity to join the list rather than given a nursery or car parking place.
All agency workers should be informed about job vacancies that would be available to comparable employees. They should be informed about where and how to access this information. This right does not apply to posts that are ring fenced for redeployment in order to avoid redundancy situations.
The University is responsible for providing access to day 1 entitlements and for any breach of this obligation. Relevant information should be made available directly to the temporary worker or to the agency. If the engagement procedure (appendix 1) and induction arrangements (see Local Induction: A Manager’s Guide) are followed, these requirements will be covered.
3.2 Rights After 12 Weeks
Following a qualifying period of 12 weeks the agency worker acquires further rights to terms that are at least as good as equivalent employees in relation to:
Entitlements do not include occupational sick pay, occupational maternity or paternity pay, pensions or redundancy pay.
Normally, managers will be able to track whether the service of an agency worker is building towards 12 weeks. However, it is possible for one agency worker to build up weeks towards the qualifying period through a series of different assignments through the same or different agencies if he or she is working for the same hirer in “the same role”. In the University, this could mean that unrelated but similar assignments in different Schools/Departments could contribute to a qualifying period. In addition, even if the agency worker only works for part of a week, it counts as a calendar week for qualifying purposes. The qualifying ‘clock’ resets to zero where a ‘new role or assignment’ is undertaken, but it only pauses where a break between contracts is less than 6 weeks or is due to sickness or a similar form of absence. It is important that such breaks are clarified and monitored carefully.
Note: The qualifying period is not retrospective. For agency workers already in post it only becomes active from 1 October 2011 onwards.
5.1 Anti-Avoidance Provisions
A hirer can decide not to engage agency workers beyond the 12 week qualifying period and there is nothing in the Regulations to prevent this. However, financial penalties apply to avoidance tactics designed to deprive agency workers of their entitlements. An example of this might be rotating agency workers between assignments so they do not build up qualifying service.
5.2 Equal Treatment
Where an agency worker has a concern that they are being treated less favourably in terms of their rights under this new legislation, they are entitled to raise their concerns in writing with both the agency and the hirer. Hirers need to be able to respond to and justify any such concerns. If not satisfied, agency workers have the right to raise discrimination claims and to take these through to employee tribunal.
5.3 Liability for Infringement of Regulations
Compliance information (see appendices 2 and 3) should be exchanged between agency and hirer to ensure that the rights of agency workers are met. Liabilities for Day 1 rights lie with the hirer. Any breach in the 12 week qualifying entitlements could initially be laid at the door of the agency but both the agency and the hirer can be considered liable to the extent that each is actually responsible for the failure. Even if the agency is initially responsible for the breach of the equal treatment principle, it will have a defence if it took “reasonable steps” to obtain relevant information from the hirer about its employment conditions. Under such circumstances, the hirer becomes liable for any infringement of rights.
If an Employment Tribunal upholds an agency worker’s complaint - for example if they have been denied access to a facility – there is no maximum award but there is a minimum award of two weeks of pay regardless of the value of the loss.
5.4 Collective Consultation with Unions
The regulations add to the list of information that must be given during collective redundancy, TUPE and other statutory consultations to union representatives. Hirers are required to state the total number of agency workers employed, the areas of the organisation in which they are engaged and the type of work they are contracted to undertake.
Costs to the University are likely to increase in the following areas:
increased pay/benefits, the extent of which depends on the difference in pay and other terms between agency workers who accrue 12 weeks or more service and comparable employees and the extent to which agency workers are engaged for over 12 weeks. It is possible, but unlikely that costs may arise from the collective facilities provisions within the University.
indirect costs will be incurred in managing compliance, avoiding unintentional breaches of the Regulations, collating and keeping information, sharing information through collective consultation and in working with employment agencies.
there will also be costs involved in responding to any claims of unequal treatment.
This legislation effectively removes many of the benefits for employers that have been associated historically with employing agency workers. In view of this, managers may wish to consider:
Reducing (or altogether ceasing) the use of agency workers
Restricting all agency worker contracts to under 12 weeks duration
Negotiating contracts with genuinely self-employed individuals or limited company contractors
Using directly employed casual staff
Directly recruiting temporary workers to short fixed term contracts
PROCEDURE FOR ENGAGING AGENCY WORKERS
Before applying for authorisation and engaging an agency worker please ensure you have read the guidance above and have assessed your needs and alternatives available to you, as there may be a more cost effective means of meeting them.
If, having read the guidance you consider that an agency worker is the most appropriate way of meeting your needs, please refer to the procedure below.
1. Define the Role
Draw up the job description and person specification (see appendix 2) for the role either with reference to the most recent job description for the role, or by drawing up a list of the main duties, responsibilities and attributes required. In either case the role should be graded by your HR Advisor.
2. Apply for Authorisation
Complete the Agency Worker Authorisation Form (see Appendix 5) and send it to Judith Whitaker for approval on behalf of the Executive Operations Group.
3. Choose an Agency
An approved supplier agreement has been developed via a tender process with a number of agencies. Where the approved providers are unable to supply appropriately skilled workers, you may seek to use a specialist agency. The approved supplier list can be found on the intranet at http://www1.aston.ac.uk/staff/centralprocurement/buying-at-aston/products/?char=S. Select ‘S’ on the A-Z to access the staff recruitment agencies.
4. Communicate Full Information about the Role to the Agency
4.1 Send a copy of the completed, graded job description to the agency, as this will be essential in determining the University terms and conditions to which workers will be entitled should they reach the 12 week qualifying period.
4.2 Notify the agency of any identified risks associated with the work and what has been done to mitigate them. It would be good practice to complete and provide the agency with a risk assessment. The HSE have published a useful guide to carrying out risk assessments which can be found at http://www.hse.gov.uk/pubns/indg163.pdf. It is the agency's responsibility to ensure that the agency worker provided is fit for the role. (Where reasonable adjustments are required (e.g if the agency worker is disabled) you may wish to seek advice from your HR Advisor.)
4.3 Identify any relevant checks needed and ensure that the Agency is aware of them (e.g. Criminal Record Bureau Disclosure). It is the Agency’s responsibility to undertake and notify you of the outcome of these, including the eligibility to work check.
4.4 Raise a purchase order for the work and includea note on the purchase order of the number of agency workers required and the type of work to be undertaken.
4.5 Forward Appendices 3 and 4 to the Agency. It is not necessary to send appendices 3 and 4 if you are using a supplier who is not on the approved supplier list. Agencies on the approved supplier list will be kept up to date with information automatically.
5. Extending the Period of Appointment
If the period of appointment needs to be extended, further authorisation should be sought from Adèle MacKinlay on behalf of the Executive Operations Group and a new purchase order should be raised.
6. Action Required Where the 12 Week Qualifying Period is Reached
You should be advised by the Agency if the individual allocated, has or will reach, the 12 week qualifying period during the engagement. The Agency should also advise you of any increase in the hourly rate and any other increased costs required to ensure the provision of equal treatment in line with the legislation. In such circumstances you should check that the full costs do not exceed the level of funding specified on the purchase order. Where it does you will need to either cancel and reissue the purchase order or ask the relevant member of staff in Purchase Ledger to amend the purchase order (contact Dally Rama for suppliers between A – C, Sheila Powell for suppliers between D – N an Mel Davies for suppliers between O – Z).
7. Managing the Agency Worker Relationship
The University does not have an employment relationship with an agency worker, and as such it is important that the 'hirer' relationship is managed in a way that is consistent with this.
For example: changes to terms and conditions, performance and conduct issues should be dealt with through the agency. The agency worker should also be directed to report all absences, requests for leave or concerns (except those in relation to access to Day 1 rights) to their agency.
On Day 1 you should ensure you:
7.1 Provide a basic induction(see Local Induction: A Manager’s Guide) and complete induction checklist amending as relevant. This checklist should be retained for six months from the end of the assignment as a defence against any claim.
7.2 Consider what health and safety information, instruction and training is needed and arrange for this to be provided.
Should you wish to allocate the agency worker further work that is substantially different from that which they were originally engaged to undertake (for example, where the new work requires a different set of skills or competences and/or a different rate of pay) you must inform the Agency of this and give them an updated job description. This is essential to avoid any new service inappropriately contributing to the agency worker’s 12 week qualifying period. If you are uncertain as to what would amount to a substantially different role please seek advice from your HR Advisor.
8. Complaints About Day 1 Rights
Should an agency worker advise you that they have concerns in relation to accessing Day 1 provisions, please seek advice from your HR Advisor promptly.
9. Complaints about 12 Week Rights
All requests for information by the agency worker in relation to equal treatment should be directed to the relevant agency immediately and your HR Advisor should be informed of this.