Human Resources

FAQs on the Use of Agency Workers word format

The Agency Workers Regulations 2010 came into effect under English law from 1 October 2011. They give new rights to agency workers in terms of equal treatment. The Regulations implement the European Temporary Agency Workers Directive in the UK.

Summary

The Regulations introduce a right for agency workers to be given the same basic working and employment conditions as if they had been directly recruited by the College. This right will only apply after 12 weeks in an assignment. The Regulations also give rights of equal access to the College’s facilities, in the same way as directly recruited employees, from the first day of their assignment. The Regulations do not change the employment status of agency workers so, for example, the Regulations will not mean they become entitled to rights which only apply to employees such as the right not to be unfairly dismissed or the right to a redundancy payment. Liability for failure to provide equal treatment to agency workers will generally lie with the agency and not the College.

Where can I get advice on developing an overall plan for temporary staff in my School or Professional Service Department?

Contact your HR Manager. They will be able to give you advice and guidance to help you plan for these changes.

What is the point of the Agency Workers Regulations?

The Regulations aim to give agency workers entitlement to equal treatment with respect to basic employment and working conditions if and when they complete a qualifying period of 12 weeks in a particular job. In other words, their basic terms and conditions of employment must be no less favourable than the terms they would have been entitled to if they were recruited directly by Birkbeck. The Agency Worker Regulations are the means by which the European Directive obligations are realised in the UK.

What about agency workers already on assignment with Birkbeck on 1 October 2011?

The Regulations are not retrospective and if you have agency staff already working for you on 1 October, their 12 week qualifying period and access to on-site facilities and job vacancies will start from that date.

Who do these regulations apply to?

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’ i.e. the College.

What defines a Temporary Work Agency?

A temporary work agency is an organisation that is in the business of supplying individuals to work temporarily for hirers, an employment agency. It doesn’t matter whether the agency is a private company or a not for profit organisation. It covers all public and private sector bodies involved in the supply of temporary agency workers. The key point here is that the supervision and direction of the worker is undertaken by the College.

What defines an agency worker?

The three key elements of an agency worker are:

• There is a contract (an employment contract or an agreement to provide services personally) between the worker and an agency;

• That worker is temporarily supplied to the College by the agency;

• When working on assignment the agency worker is subject to the supervision and direction of College.

When do agency workers qualify for equal treatment?

Day 1 Rights - From the first day of employment, the following entitlements apply:

• Access to facilities; such as the staff restaurant and workplace nursery, without having enhanced access rights. This is not a right to special treatment, for example, if the workplace nursery is full and any permanent employee has to go on a waiting list, this will also apply to the agency worker;

• Access to vacancies; the right to be notified of any job vacancies within the College.

I have a vacancy that is restricted to internal applicants only (existing employees). Do I have to include agency workers within the definition of internal applicant?

Yes, all advertised vacancies with the College must be easily accessible to qualifying agency workers. This obligation for the College relates only to the information about vacancies and does not significantly constrain the manager’s discretion regarding how they treat applications, qualification, experience requirements etc. The obligations on equalities outlined in the recruitment policy will continue to apply. This right will not apply in the context of a genuine ‘headcount freeze’ where organisational restructuring is in place to avoid redundancies. The right extends only to vacancies in this context.

12 week Rights - After 12 weeks in the same role, these additional new equal treatment entitlements relate to ‘relevant terms and conditions’, namely pay and other basic working conditions and will only come into effect after an agency worker completes a 12 week qualifying period with the College, in the same role. These include:

• Key aspects of pay related to work undertaken on assignment;

• Duration of working time;

• Rest periods;

• Ante-natal appointments.

Pay does not include terms relating to:

• Pensions;

• Occupational sick pay;

• Maternity, paternity or adoption pay;

• Redundancy or other payment on termination of employment;

• Expenses;

• Additional payments which are not directly attributable to the quality or quantity of the work for example, an award given to reward long service.

The right to equal treatment will not apply until an agency worker has worked in the same role for the College for 12 continuous weeks.  Importantly, any change of agency during the 12 week period will not affect qualification. Pregnant agency workers will now be allowed to take paid time off for ante-natal appointments during any assignment, providing that they have completed 12 weeks service.

What does ‘the same role’ mean?

If a change in position is to require an agency worker to re-qualify for equal treatment, the whole or main part of the new role must be ‘substantively different’ from the previous role.  A further requirement is that the agency must have notified the worker in writing of the type of work they will be required to carry out in the new role.

How many working hours per week are required for qualification?

There is no minimum amount of work or minimum number of hours worked in a week, that needs to be completed in order for a week to count as one of the 12 for qualification purposes.

Is the 12 week qualifying period continuous?

Any break between assignments of six weeks or less, in the same role, shall not break ‘continuity’ for qualification purposes. An agency worker could work for more than one organisation during a week. They may therefore have more than one qualifying period running at any one time. 

An agency worker might work for the College for 6 weeks with one agency and is placed with the College three weeks later by another for a further eight weeks. As there has not been a six week break between the assignments, the agency worker will be entitled to equal treatment after 6 weeks on the second assignment.

Human Resources

October 2011

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The HR team is based on the first floor of Egmont House
Postal address: Human Resources, Birkbeck, University of London, Malet Street, London WC1E 7HX
Email: humanresources@bbk.ac.uk