Summary

1.  The Agency Workers Regulations are applicable to: 

  • Colleges/Services using workers supplied by a Temporary Work Agency;

The Regulations are not applicable to TSB which does not provide workers to third parties.

2.  Definitions:

  • Temporary Work Agency - In additional to recruitment agencies, the definition covers intermediaries involved in the supply of temporary workers, such as Umbrella Companies 
  • Agency Worker - An agency worker is someone who has an employment  contract to perform work personally with the Temporary Work Agency but works temporarily for and under the direction and supervision of a hirer Hirer
  • The end user (the University)


3.  The Regulations came into force on 1 October 2011.

4.  The main aim is to ensure that Agency workers have the basic working and employment conditions that they would have had if they had been recruited directly by the University as comparable permanent employees. 

5.  The provisions cover working time, rest breaks, night work, annual leave and pay.

6.  Exclusions include Occupational sick pay, pensions, maternity, paternity and adoption leave and redundancy pay.

7.  Day one rights include access to facilities (e.g. staff car parking, the Family Centre, Occupational Health) and the right to know about permanent vacancies.

8.  After a 12 week qualifying period rights to equal pay and working conditions apply.  Pregnant women also have the right to paid time off for ante-natal appointments.

9.  The time that counts towards the qualifying period will only be broken if the agency worker starts a new role within the University where ‘the work or duties that make up the whole or the main part of that new role are substantively different’.  The agency must notify the worker in writing of what the new role will comprise. 

10. An agency worker who considers that he/she may not have been treated lawfully can bring a claim against the University under these Regulations.  A tribunal can make an award of compensation (a minimum of 2 weeks pay).

11. If the University tries to avoid complying with the Regulations then a penalty award of up to £5,000 can be awarded.

Introduction

The Agency Worker Regulations (which implement the EU Temporary Workers Directive) came into force on 1st October 2011.  The aim is to ensure that temporary workers have the basic working and employment conditions that they would have had if they had been recruited directly by the hirer as comparable permanent employees. 

The Directive also provides for equal access for temporary workers to facilities and the right to be informed about job opportunities within the organisations where they are working.

A comparable employee will be someone engaged in the same or similar work, but also having regard to whether they have a similar level of qualifications and skills, and if possible should be based at the same establishment.

This guidance assumes that the hirer is the University.

The right to equal working and employment conditions

An agency worker is entitled to the same basic working and employment conditions (as a comparable employee) as they would have been entitled to if they had been directly recruited by the University than through a temporary work agency.

The provisions cover working time, rest breaks and breaks, night work, annual leave and pay.  For a provision to be included under the Regulations, it must be “ordinarily included” in the terms and conditions of the relevant comparator.  Therefore an agency worker cannot identify a one-off benefit given to an individual University employee and lay claim to that benefit.

Pay includes pay, holiday pay, bonuses directly related to the work of the agency worker whether contractual or discretionary, and overtime. 

The following benefits are excluded from the scope of the Regulations:

  • Occupational sick pay;
  • any pension, allowance or gratuity in connection with retirement or as compensation for loss of office;
  • any payment in respect of maternity, paternity or adoption leave;
  • redundancy pay;
  • any bonus, incentive payment or reward which is not directly attributable to the amount or quality of work done by a worker, and which is given to him for a reason other than the amount or quality of work done such as to encourage his loyalty or reward his long-term service e.g. the University bonus;
  • a payment for time off for trade union duties;
  • any expenses payment; and
  • any payment to a worker otherwise than in his capacity as a worker. 

If the agency worker does not receive the correct pay or other conditions such as annual leave because incorrect information has been provided to the temporary work agency by the University, the University will be responsible for this breach and not the Agency.

Access to facilities

There is no qualifying period for access to facilities as they start immediately and are classed as ‘Day 1’ rights.

The rights afforded by these provisions do not exceed those afforded to employees but they must match them (e.g. if there is a waiting list or a fee to be paid, the agency worker is not exempt from these requirements).

Examples of facilities to which an agency worker must be offered access include gyms, staff canteens, transport and crèches.  Access need not be provided if a comparable worker would not have access or if less favourable treatment can be objectively justified. 

Right to know about permanent vacancies

The right to be told of any relevant vacancies with the University arises from the start of the assignment.  Relevant vacancies are described as being vacancies for which a comparable worker would be given the opportunity to apply.

A ‘general announcement’ of such vacancies in a suitable place will suffice (e.g. the University vacancy website). This needs to be highlighted to the agency worker on the first day of their assignment (see Appendix 1).

Extra rights for pregnant women and nursing mothers

Pregnant women will have the right to paid time off for antenatal appointments after a 12 week qualifying period.

Pregnant women, those who have recently given birth and nursing mothers will need to have risk assessments carried out and a female agency worker will have to be moved to alternative work by the agency or suspended on full pay if there is a risk to her health and safety. The Temporary Work Agency would be responsible for this.

Pensions

The Regulations currently exclude occupational pensions.  However, the Pensions Act 2008 will bring about certain pension reforms (after October 2012), which will affect the rights of agency workers. The University will give further clarification to this in due course.

Qualifying Period

The time that counts towards the qualifying period will only be broken if the agency worker starts a new role within the University where ‘the work or duties that make up the whole or the main part of that new role are substantively different’.  A further requirement in these circumstances is that the agency must notify the worker in writing of what the new role will comprise. 

It is anticipated that a change of location or just a change of line manager will not be sufficient.  The key focus will be the roles and responsibilities involved with the job.

Continuity will be broken where there is a break of at least six calendar weeks either during or between assignments.  Where the break is for less than six calendar weeks, continuity will be suspended.

Certain absences, such as sickness absence of up to 28 weeks, annual leave, jury service of up to 28 weeks, and any pre-determined periods of time where the hirer’s requirement for staff to attend work has ceased (e.g. a teacher’s summer holiday) will suspend continuity rather than breaking it.  Where a worker is absent for reasons relating to pregnancy, childbirth or maternity during a ‘protected period’ or is taking maternity, paternity or adoption leave, continuity will continue to accrue during such absences.

Where an agency worker has completed the qualifying period, his right to equal pay and working conditions will continue until he ceases to work in the same role or if there is a break in continuity (see above).

An agency worker is deemed to have completed the qualifying period, or to be continued to be entitled to his right to equal pay and working conditions, if he has not gained or has lost his right because of the way his assignments have been structured, and the most likely explanation for this is an intention to prevent him gaining or retaining his right.

Liability

An agency worker who considers that he may not have received the correct pay or other working conditions can make a written request to the temporary work agency for a written statement providing the relevant information.  If that statement is not provided within 30 days, the agency worker can make a written request to the University for information relating to the relevant basic working and employment conditions of the workers of the university, and this must then be provided in writing within 28 days.

Any agency worker who considers that the University has not provided him with the correct assess to facilities, or information on permanent employment vacancies, can make a written request to the University for information relating to that, and the University must provide it within 28 days.

The College/Service should notify their HR Business Partner/Manager/Officer in the event of a request being made.

An agency worker has the right not to be subjected to a detriment relating to:

  • his bringing a claim under the Regulations,
  • alleging a breach of the Regulations, giving evidence or information in a claim,
  • requesting a written statement,
  • refusing to forgo a right,
  • or doing anything else under these Regulations, or on the grounds that it is believed or suspected that he has done so or intends to do any of the above. 

There is an exception where an allegation is false and not made in good faith.

Where an agency workers placement is terminated for one of the above reasons, that dismissal will be automatically unfair.

Complaints to employment tribunals

A claim should be brought within 3 months of the infringement of the right.  If the claim is upheld, the Tribunal can make a declaration of the rights of the complainant, can make an award of compensation and can recommend that the respondent take action within a specified period for the purpose of preventing or reducing the adverse effect of the breach on the complainant.  Compensation is to be awarded on a just and equitable basis.  Where the breach relates to the basic working and employment conditions the award must normally be a minimum of 2 weeks’ pay.  There is a duty to mitigate loss, and contributory fault is taken into account.

If the University tries to avoid complying with the Regulations through the way it structures assignments then a penalty award of up to £5,000 can be awarded.

Appendix 1

 RightsQualifying Period Responsibility 
Notification of vacancies Day one University staff member who has hired the agency worker
Access to facilities Day one Information needs to be given by the university staff member who has hired the agency worker
Access to Occupational Health Service Day one Information needs to be given by the university staff member who has hired the agency worker
Pay 12 weeks The Temporary Work Agency will request this information from the university staff member who agreed the hire of the agency worker
Annual Leave 12 weeks The Temporary Work Agency will request this information from the university staff member who agreed the hire of the agency worker
Paid time off for antenatal appointments 12 weeks The Temporary Work Agency will request this information from the university staff member who agreed the hire of the agency worker

 

Other Benefits: Overtime, Bonuses, Childcare vouchers

 

12 weeks The Temporary Work Agency will request this information from the university staff member who agreed the hire of the agency worker
Occupational sick pay n/a  
Occupational maternity/paternity pay n/a  
Pension TBC