Agency Workers Regulations – Explanation
1. Background
The Agency Workers Regulations 2010 come into force on 1 October 2011. The information below is not a definitive explanation – go to the government website http://www.education.gov.uk – search under supply teachers for greater detail.
2. What are the Agency Worker Regulations?
The Regulations originate from the EU Temporary Workers Directive 2008 giving agency workers the right to the same pay and other working conditions enjoyed by a hirer’s own workers, after an agency worker has completed 12 weeks of service in the same role with the same hirer .
Day One rights (see point 13 ) are not subject to a qualifying period.
3. Who is an agency worker for the purposes of the Regulations?
The Regulations only apply to temporary workers – not to workers who have been placed in a permanent position with an employer by an agency. An agency worker is defined as an individual who is supplied by a temporary work agency, to work temporarily under the supervision and direction of a hirer and who has a contract of employment or any other type of contract (a contract for services for example), under which they provide their service personally for the agency.
4. What is a ‘temporary work agency’ for the purposes of the Regulations?
A temporary work agency includes the agency which supplies the worker to the hirer, any umbrella companies and any other party involved in the supply – this means that all those parties are responsible for ensuring that the agency worker receives his/her entitlements.
5. Who is the Hirer for the purposes of the regulations?
The “hirer” is the legal entity to whom the temporary worker is supplied and to whom that worker is responsible and who supervises and directs their work. In schools with a governing body or a proprietor (e.g. Independents) we consider the school to be the hirer. In the case of Academies we consider the Academy Trust to be the hirer. Where there is no governing body/proprietor/Academy Trust we consider the LA to be the hirer.
6. When does an agency worker qualify for equal treatment?
Except for the Day One rights (see point 13) an agency worker is entitled to equal treatment once she/he has worked for 12 weeks in the same role at the same hirer. This is irrespective of the working pattern (e.g. full time or part time – it can be as little as 1 hour per week ). It is also irrespective of which or how many agencies supplied the agency worker to do the same role at the hirer.
7. What can break the qualifying period?
A new qualifying period will begin if a new assignment with the same hirer is substantively different (and that does not mean simply changing a job title), or if there is a break of more than six weeks between assignments in the same role. (See 8 and 9 below for exceptions)
8. What can pause the qualifying period?
Examples where the qualifying period will be paused (not stopped) if the worker takes:
- A break of six weeks or less –unless there is a school closure due to “the temporary cessation in the hirer’s requirements”. School holidays pause the qualifying period regardless of length.
- Certified sick leave for no more than 28 weeks;
- Time off for public duties (including jury service) – for a specified period
9. The qualifying period will not stop or pause for :
- Breaks related to pregnancy or childbirth, or taking maternity, adoption or paternity leave, the agency worker will be treated as if he or she has continued working in an assignment, although the temporary worker would not be paid the assignment rate during this period.
10. Accruing the 12 weeks through different temporary agencies
An agency worker does not have to work for 12 consecutive weeks via the same agency to qualify for the right to equal treatment. The 12 weeks qualifying period can be accrued over a much longer period of work and through more than one agency – subject to the rules in point 7,8,and 9.
11. What is covered by the term equal treatment?
- Pay (in the case of teachers this means the agency workers scale rate not that of the employee they are covering)
- Duration of working time
- Rest periods
- Annual leave.
12. What is not covered by the regulations?
- Pensions
- Occupational Maternity Pay
- Occupational Maternity leave
- Occupational Paternity/adoption Pay
- Pay for unfair dismissal
- Redundancy pay
- Occupational sick pay
- Loans
- Expenses
- Health/life insurance,
- Bonus payments based upon school performance.
13. What is covered by Day One Rights?
- Access to job vacancies
- From day one Hirers must inform agency workers of existing vacancies in their organisation by ensuring that they have the same access to information about vacancies as other workers.
- Access to Collective on-site facilities
- From day one there must be access to on site facilities e.g. crèche and childcare facilities, canteen facilities, car parking and the provision of transport services. However, access to facilities can be refused if it is based on ‘objective grounds’. If for instance there is a waiting list for childcare facilities or a car park space, an agency worker is not automatically entitled to a place but can be subject to the same criteria to access the facility as someone directly employed by the hirer.
14. Who is liable for establishing equal treatment?
Equal treatment will be established applying the relevant terms and conditions that apply to a comparable worker/employee engaged in the same role or broadly similar work. There may be a ‘flesh and blood’ comparator to establish parity in pay and working conditions. If a ‘flesh and blood’ comparator cannot be found, then there may be an identifiable pay scale or a starting rate which could be used as a reference point.
For schools the School Teachers’ Pay and Conditions Document may be a reference point or the schools specific pay policy if it is not based on the STPC document.
15. Who is responsible for ensuring no breach occurs?
The temporary work agency - in relation to equal treatment. However, if it has taken ‘reasonable steps’ to obtain the necessary information from the hirer, and has acted ‘reasonably’ in determining the agency worker’s basic working and employment conditions – an employment tribunal would then apportion liability and any financial sanctions accordingly
The hirer is responsible for any breach of the Day One rights. However the agency and the hirer must co-operate with each other to ensure that an agency worker receives his/her rights. So an agency can assist the hirer by asking the right questions at the right time –whether this is on receipt of instructions to supply a worker or when it is clear that the assignment will last longer than 12 weeks.
All parties in the chain are responsible for ensuring the agency worker receives his/her entitlement.
16. Pregnant agency workers
Pregnant agency workers will be entitled to paid time off to attend medical appointments and antenatal classes once they have achieved the 12 weeks qualifying service.
17. What are the financial penalties for breach of the Regulations?
A Tribunal can award compensation to an agency worker where they have suffered as a result of a breach of the Regulations. Compensation will normally be based on their losses but will be not less than two weeks pay. The hirer and the agency need to work together to ensure that the agency worker receives equal treatment after the 12 week qualifying period.
In the event that the Tribunal finds that the Regulations have been deliberately avoided they can award an agency worker compensation of up to £5000.