Introduction

This guidance on engaging agency workers is written in line with the Agency Workers Regulations 2010 (the regulations). This legislation gives rights to agency workers to a form of equal treatment; after a qualifying period of 12 weeks. From the 13th week onwards their basic terms and conditions of employment must be no less favourable than the terms they would have been entitled to, had they been employed directly by the hiring organisation.

There are also some specific rights that agency workers gain from their first working day (see section 6). These changes increase the cost of hiring agency workers particularly after 12 weeks in the University.

The regulations also give agency workers the right to take claims to an employment tribunal where their new rights have not been fulfilled.

Aim of this guidance

The aim of this guidance is to explain how to take on agency workers and meet the legislative requirements of the regulations.

Who is an agency worker

The regulations apply to individuals who have a contract with a temporary work agency and who are supplied by that agency to work temporarily under the supervision and direction of a ‘hirer’ (in our case the University). The regulations’ definition of who constitutes an agency worker is a broad one and only the genuinely self-employed are intended to fall outside its scope. The definitions do also exclude genuine outsourcing arrangements.

If you are unclear about whether an externally contracted worker is an agency worker you should seek advice from your HR Business Partner or Advisor, or contact Procurement.

Rights for agency workers under the regulations

The regulations give agency workers after 12 weeks of working in the University, the right to equal treatment with permanent staff in terms of the following terms and conditions:

• pay
• annual leave
• rest periods and breaks
• the duration of their working time
• night work

Annual leave

Agencies already have to provide agency workers with annual leave at the statutory minimum from day one, which is included in the cost that we pay to the agency. Under the regulations, after 12 weeks in the University, agency workers have the right to the same level of annual leave as directly employed staff.

There is however considerable scope for flexibility with respect to how this leave is provided, and it could be for example be ‘rolled up’ into the worker’s pay. As part of its current tendering exercise, Procurement have agreed with the preferred suppliers of agency services that a rolled up payment for annual leave will be included in rates paid to agency staff with a higher rolled up rate applied from their 13th week of working in the University.

Pay

The regulations’ give a broad definition of pay that includes ‘…any sums payable to a worker of the hirer in connection with the worker’s employment, including any fee, bonus, commission, holiday pay, or other emolument, whether payable under the contract or otherwise’. As part of its current tendering exercise, Purchasing Services have worked with preferred suppliers of agency workers to ensure that the rates paid after 12 weeks incorporate the equivalence with the terms and conditions specified above.

The regulations do not change the employment status of agency workers who will still not have the right to claim unfair dismissal, redundancy pay or maternity or paternity leave. Nor will agency workers be entitled to the same arrangements as employees for benefits such as occupational sick pay or pension schemes.

The 12 week qualifying period for main rights

The rights of agency workers to equal treatment with respect to relevant terms and conditions will not apply until they have worked in the same role for a hirer (the University) for 12 continuous weeks. Importantly, any change of agency through whom the worker is hired during the 12-week period will not affect qualification.

There is no minimum amount of work that will need to be completed in order for a week to count as one of the 12 for qualification purposes.

Once an agency worker has completed the qualifying period, they will remain qualified for equal treatment until there is a break of sufficient length to break ‘continuity’. This would be a break between assignments with the same hirer of more than six weeks, provided that it is not for one of the prescribed reasons (for example sickness absence, jury service, strike action) which 'pauses' the clock or pregnancy, childbirth, maternity during which it continues to 'tick'.

Further guidance on these matters can be sought from your HR Business Partner or Advisor, or through Procurement

Rights of agency workers from their first working day

The regulations give agency workers some rights that apply from their first day of working in the University. These are listed below and will be met by the preferred suppliers providing this information directly to any agency worker working in the University as part of their induction process:

i. Collective facilities and amenities – the right to be treated no less favourably than a comparable direct employee in being given access to ‘collective facilities and amenities’ provided by the hirer. The expression ‘collective facilities and amenities’ is not defined by the regulations, but three examples are listed:

• canteen or other similar facilities
• childcare facilities
• transport services

ii. Information on any relevant vacant positions – the right to be informed of any relevant vacant position with the hirer so the agency worker has the same opportunity as a comparable worker to find permanent employment with the University.

Actions required by university staff hiring agency workers

Staff responsible for hiring agency workers should:

1. Read and carefully consider this management guidance and seek further advice if required from Kate Harper in HR kwh33@bath.ac.uk or from Liam Kilawee in Procurement lk363@bath.ac.uk.

2. Consider very carefully if the use of an agency worker will constitute value for money for the University in the future. You may wish to consider instead using (student) casual staff or using fixed term or casual appointments in discussion with your HR Business Partner or Advisor.

Staff responsible for hiring agency workers must request authorisation to hire/engage an agency worker by submitting an agency worker Staff Request Form (SRF).

The request should give full details of the following:

• the circumstances that have given rise to the need to engage an agency worker and why other non-agency arrangement would not be possible
• details of the role and working period
• the time period of the proposed engagement
• a formal request to vire funding from pay to non-pay budgets, if applicable, or otherwise an explanation of how the costs of the agency worker are to be met

Approval routes

Agency worker for a new position or with a duration of greater than nine weeks:

Recruiting Manager > Departmental Review > HR Advisor Review > Finance Review > Strategic Appointment Team (SAT) > HR Recruitment Confirmation.

Replacement position such as to cover sickness or absence and with a duration of less than nine weeks:

Recruiting Manager > Departmental Review > HR Advisor Review > Finance Review > HR Recruitment Confirmation.

If your agency worker request is approved, you will be provided with a Unique Reference Number (URN) which will allow you to contact the agencies on the appropriate preferred supplier list. Please review the buyers guide which contains a CV Request form for you to complete. This must be emailed to the SUPC/LUPC TAP Framework suppliers, cv-request-admin-staff@lists.bath.ac.uk.

Agencies have been advised to return any request which doesn’t contain a URN.

You will not be permitted to engage an agency worker through another company unless none of the contracted suppliers can field a suitable candidate, and you have received approval from Procurement.

Actions taken to ensure the effective implementation of the new regulations

Procurement − working in liaison with the Department of Human Resources − have put in place the following arrangements with the University’s preferred suppliers of agency workers:

1. Basic induction information will be provided by the agency to new agency workers prior to their commencement in the University. This will include information on collective facilities and amenities and how to access University vacancies via its jobsite, which are rights for agency workers from the first day.

2. The maximum placement period for any agency worker in the University has been set at nine weeks with all preferred suppliers. Any request for an extension beyond this or for an initial placement of 10 weeks or over will require a higher level of authorisation from the Director of Finance as set out in section 7.

3. Agencies will inform the responsible hirer in the University and Purchasing Services of the number of weeks that the agency worker has worked in the University and will flag when this reaches nine weeks.

4. New rates of pay for agency workers will be paid by all preferred suppliers to any worker who has more than 12 weeks continuous working. These will meet the requirements of the new regulations.