- Do the changes to the Agency Worker Regulations change the employment status of agency workers?
- How are agency workers able to find out whether they are receiving their rights?
- How do I work out what an agency worker is entitled to?
- How is pay and holiday calculated?
- How is the 12-week qualifying period calculated?
- Is the 12-week qualifying period broken if the agency worker is placed with the hirer for a second assignment, but through a different agency?
- What does equal treatment include?
- What protection do the Regulations provide for pregnant and new mother agency workers?
- What rights do the Regulations give agency workers?
- What type of workers do the Regulations apply to?
- When am I eligible for overtime pay?
- When can I apply for an internal only vacancy?
- Where can I find further guidance on the Regulations?
- Who is responsible for providing equal treatment?
Do the changes to the Agency Worker Regulations change the employment status of agency workers?
No. The Regulations do not change the status of temporary agency workers and do not make them employees.
How are agency workers able to find out whether they are receiving their rights?
After meeting the 12-week qualifying period, an agency worker can make a request in writing to their agency for relevant information about the basic terms and working conditions in the hirer. If the agency fails to provide the information within 30 days of the request the agency worker may make the request direct to the hirer, who then has 28 days to respond.
If the request is about access to collective facilities and information about employment vacancies, the worker makes the request direct to the hirer. The hirer then has 28 days to respond.
Where the agency and/or hirer fails without reasonable excuse to respond or the response is late, evasive or equivocal, then in any employment tribunal proceedings that may follow, the tribunal can draw an inference from the failure or delay etc.
How do I work out what an agency worker is entitled to?
The right is to equal treatment in respect of basic working terms and conditions, as if the agency worker had been employed directly to do the same job. Although in some cases that could mean a relatively speculative assessment of what those terms would be, the Regulations provide that equal treatment is deemed to have been provided where the worker receives the same relevant terms and conditions as a comparable employee working for the hirer. Therefore, authorities will need to work out to the extent to which the agency worker's basic working terms and conditions match those of a comparable employee.
As local authorities employ a large number of people in a variety of roles, in most cases it should be relatively straightforward to identify a comparable employee. Where incremental pay and benefit scales are in place, the default position should be that the agency worker is paid at the bottom of that pay scale, as a new employee would be.
How is pay and holiday calculated?
In the Regulations, 'pay' means basic pay - plus any fee, bonus, commission, or other payment directly referable to the employment, such as overtime or unsocial hours payments.
Bonuses do not include long-term loyalty bonuses, but do include performance bonuses. This means that some hirers will need to set up a process for monitoring the worker's performance, although there will be no obligation to provide the same appraisal system as employees receive. Any 'appraisal like' system that may be set up for this purpose should not amount to evidence that an agency worker has gained employee status.
The holiday entitlement includes any entitlement above the statutory minimum requirement of 28 days per annum including bank holidays, which in most cases will mean the relevant contractual entitlement applicable to the hirer's employees. The Regulations allow payment to be made in lieu of holiday entitlement above the statutory minimum either as part of the daily/hourly rate or at the end of the assignment.
How is the 12-week qualifying period calculated?
Any period of work (full or part-time) carried out by the agency worker for the hirer in a calendar week will make that week count towards the 12-week qualifying period.
For the purposes of calculating the qualifying period, continuity will normally be broken by a break of six weeks between assignments in the same job; or when an agency worker takes up a new role with the hirer, where the whole or main part of the duties in the new role are substantially different from the whole or main part of the duties in the old role.
However breaks between assignments due to a number of specified reasons, such as sickness (of up to 28 weeks), jury service or pre-determined closure periods (e.g. school closures during holidays) will not break the qualifying period. Instead the 'clock is paused'. For example, if a worker works for 11 weeks in a school, and the school closes for six weeks - when the agency worker returns their first week back will be week 12 for the purposes of the qualifying period.
The situation is different in the case of absence related to pregnancy, childbirth or maternity during the "protected period", and for pregnancy, maternity, paternity or adoption leave. In such cases the worker is for the purposes of calculating the 12-week period deemed to continue working in their role for the original intended length of the assignment, or likely duration of the assignment, whichever is longer. The "protected period" starts at the beginning of the pregnancy and ends at the end of the 26th week from childbirth, or when the worker returns to work, if earlier.
Is the 12-week qualifying period broken if the agency worker is placed with the hirer for a second assignment, but through a different agency?
No, not unless the gap between assignments is six weeks or more or the new role is a substantially different to the first one. This is because the 12-week qualifying period is calculated by reference to service with the hirer, irrespective of which agency places the worker.
Because of this, local authorities should put in place procedures with their agencies and agency workers to check whether the worker has worked for them in a previous assignment.
What does equal treatment include?
The Regulations require equal treatment in respect of the 'relevant terms and conditions' ordinarily incorporated into the contracts of those working in the hirer. This means the relevant terms and conditions in collective agreements, relevant pay scales and terms generally included in employees' contracts of employment.
'Relevant terms and conditions' are defined as:
- Pay
- The duration of working time
- Night work
- Rest periods
- Rest breaks
- Annual leave.
However these rights are subject to a 12-week qualifying period.
The Regulations also provide for equal treatment from day one in terms of access to external vacancies and collective facilities.
What protection do the Regulations provide for pregnant and new mother agency workers?
Pregnant agency workers who have met the 12-week qualifying period are entitled to take paid time off for ante-natal appointments. The agency is primarily responsible for providing this right, and for paying the worker for the time off. However, local authority hirers should ensure that practical arrangements are put in place so that the worker is able to take the time off.
Hirers will be required to carry out risk assessments for pregnant workers, and where a risk is identified, make reasonable adjustments to remove the risk. Where that is not possible, under the Regulations, the agency will be responsible for offering alternative work. Where that is not possible, the agency should pay the worker for the remainder of the assignment for any period that she cannot work due to the health and safety risk.
There is no obligation on hirers to keep a role open for an agency worker who is on maternity leave.
What rights do the Regulations give agency workers?
The Regulations give agency workers the right to equal treatment in terms of "basic working and employment conditions", as if they had been employed directly by the hirer to do the same job. In many cases this means that agency workers will be entitled to the same rate of pay as a comparable employee, but they are not entitled to get all of the terms and benefits that the comparable employee gets.
Importantly, many of the rights are subject to the worker working for the hirer for 12 weeks or more.
What type of workers do the Regulations apply to?
The Regulations apply to the type of worker often referred to as 'agency temps', being workers who are placed to work in hirer organisations through temporary work agencies or intermediatory agencies (in local authorities often called master or neutral vendors).
The Regulations do not apply to self-employed contractors or those employed on a service contract managed by a party other than the hirer organisation. However, they do apply to workers contracted to an "umbrella company". This means workers who work through a service company, but who are not genuinely self employed.
When am I eligible for overtime pay?
Overtime must be authorised in advance through discussion with your line manager
Overtime will be paid at the set rate, if you have exceeded working 37.5hrs during your working week. The exception to this is when you take a paid holiday(s) during the week - then overtime will be calculated on your "expected" working hours for that week(i.e. number of days worked x 7.5hrs).
If you work part-time(less than 37.5hrs), or take an unpaid holiday during the week then you will need to work more than 37.5hrs before overtime pay will be paid.
It may be agreed that overtime will be taken as time in lieu rather than receive payment. This will need to be discussed fully with your line manager as to how they wish to implement your extra working hours.
There is an unsocial hours enhancement that will be applicable if you work outside normal working hours.
For more details please read the attached document below.
N.B. Please ensure that all timesheets are filled out correctly to show your appropriate hours otherwise payment may not be as expected.
When can I apply for an internal only vacancy?
A restriction has been imposed on new starters/agency workers that states that you must have worked for the Trust for 12 months in your new post or be on an assignment through an agency before you will be eligible to apply for internal only posts.
This is applied to all new staff/agency workers, as it ensures that there no inequality in applying for posts.
If you have any further queries, please feel free to contact you Line Manager.
Where can I find further guidance on the Regulations?
The Department for Business, Innovation & Skills has produced guidance on the Regulations, which is available on its website.
Who is responsible for providing equal treatment?
Responsibility for ensuring equal treatment for most of the rights is primarily with the employment agency. However, an agency will be able to defend a claim and the hirer will become liable, if the agency can show that it took "reasonable steps" to obtain the necessary information from the hirer to determine the agency workers' basic working and employment conditions. Therefore, local authorities as hirers need to ensure that they set up systems for providing their agencies with appropriate information on the terms and conditions that are in place in their authority.
