AGENCY WORKERS – GUIDANCE FOR MANAGERS
CONTENTS:
1. INTRODUCTION
2. DEFINITIONS
3. RIGHTS UNDER THE LEGISLATION
3.1 Day 1 Rights
3.2 Rights After 12 Weeks
4
THE 12 WEEK QUALIFYING PERIOD
5
RISKS AND LIABILITIES
5.1 Anti-avoidance Provisions
5.2 Equal Treatment
5.3 Liability for Infringement of Regulations
5.4 Collective Consultation with Unions
6
INCREASED COSTS OF USING AGENCY WORKERS
7
OPTIONS FOR HIRERS
APPENDIX 1 – PROCEDURE FOR ENGAGING AGENCY WORKERS
APPENDIX 2 – JOB DESCRIPTION TEMPLATE FOR AGENCY WORKERS
APPENDIX 3 – HOURLY RATES OF PAY (EXCLUDING HOLIDAY PAY)
APPENDIX 4 – RELEVANT TERMS AND CONDITIONS OF EMPLOYMENT
APPENDIX 5 – AGENCY WORKER AUTHORISATION FORM
AGENCY WORKERS – GUIDANCE FOR MANAGERS
1. INTRODUCTION
The Agency Workers Regulations 2010 came into force on 1 October 2011. They give
agency workers the right to some of the same basic working and employment conditions
as staff who are directly employed by the University (subject to certain eligibility
conditions). However, they do not do not impose an employment relationship between
the agency worker and the University and they do not entitle them to full equality.
These Guidance Notes outline the legislation and the actions to be taken by managers in
order to comply with the legislation.
2. DEFINITIONS
Agency workers are staff who are supplied by a temporary work agency to work
temporarily for and under the supervision of a hirer; and who are contracted by the
agency to perform work/provide services personally. Agency workers either have a
contract for service or a contract of employment with the agency who finds them work.
This work is often called ‘temporary work’, 'temping' or ‘agency work’. The University (the
“hirer”) pays a fee to the agency, and the agency pays the worker’s wages.
Flexibility for both worker and hirer is one of the features of agency work. Agency
workers have the flexibility to take up and leave jobs at short notice. Hirers have the
flexibility to finish temporary work without being liable for unfair dismissal or redundancy
pay.
Areas which are outside the scope of the Agency Worker Regulations include all directly
employed casual staff, managed service contracts (i.e where the hirer contracts with
another firm to provide a service which is staffed and managed by the other firm),
contracts with people who are genuinely self-employed, individuals on secondment or
loan from another institution and (while they might come from employment agencies) the
introduction of workers to employers for direct or permanent employment.
3. RIGHTS UNDER THE LEGISLATION
The Regulations give agency workers two rights:
 The right from day 1 of their assignment to equal access to employment opportunities
and collective facilities, and
 The right after undertaking the same role, for the same organisation for 12
continuous weeks to the same basic working and employment conditions.
3.1 Day 1 Rights
From the first day of their assignment agency workers are entitled to be treated no
less favourably than a comparable worker or employee in being able to access such
facilities as:







Cafes, restaurants and common rooms
Nursery
Transport services
Toilet/shower facilities
Gym and leisure facilities
Car parking
Information on job vacancies
This does not mean that agency workers have enhanced access rights; for example,
where applications for the nursery or car park involve joining a waiting list, the
agency worker should be given the opportunity to join the list rather than given a
nursery or car parking place.
All agency workers should be informed about job vacancies that would be available
to comparable employees. They should be informed about where and how to access
this information. This right does not apply to posts that are ring fenced for
redeployment in order to avoid redundancy situations.
The University is responsible for providing access to day 1 entitlements and for any
breach of this obligation. Relevant information should be made available directly to
the temporary worker or to the agency. If the engagement procedure (appendix 1)
and induction arrangements (see Local Induction: A Manager’s Guide) are followed,
these requirements will be covered.
3.3 Rights After 12 Weeks
Following a qualifying period of 12 weeks the agency worker acquires further rights to
terms that are at least as good as equivalent employees in relation to:
 Pay
 Overtime/Unsocial hours payments/Shift premia
 Annual increments
 PRP
 Duration of working time
 Night work
 Rest periods
 Annual leave
 Paid time off for antenatal appointments and other adjustments for pregnancy
Entitlements do not include occupational sick pay, occupational maternity or paternity
pay, pensions or redundancy pay.
4. THE 12 WEEK QUALIFYING PERIOD
Normally, managers will be able to track whether the service of an agency worker is
building towards 12 weeks. However, it is possible for one agency worker to build up
weeks towards the qualifying period through a series of different assignments through
the same or different agencies if he or she is working for the same hirer in “the same
role”. In the University, this could mean that unrelated but similar assignments in
different Schools/Departments could contribute to a qualifying period. In addition, even if
the agency worker only works for part of a week, it counts as a calendar week for
qualifying purposes. The qualifying ‘clock’ resets to zero where a ‘new role or
assignment’ is undertaken, but it only pauses where a break between contracts is less
than 6 weeks or is due to sickness or a similar form of absence. It is important that such
breaks are clarified and monitored carefully.
Note: The qualifying period is not retrospective. For agency workers already in post it
only becomes active from 1 October 2011 onwards.
5. RISKS AND LIABILITIES
5.1 Anti-Avoidance Provisions
A hirer can decide not to engage agency workers beyond the 12 week qualifying
period and there is nothing in the Regulations to prevent this. However, financial
penalties apply to avoidance tactics designed to deprive agency workers of their
entitlements. An example of this might be rotating agency workers between
assignments so they do not build up qualifying service.
5.2 Equal Treatment
Where an agency worker has a concern that they are being treated less favourably in
terms of their rights under this new legislation, they are entitled to raise their
concerns in writing with both the agency and the hirer. Hirers need to be able to
respond to and justify any such concerns. If not satisfied, agency workers have the
right to raise discrimination claims and to take these through to employee tribunal.
5.3 Liability for Infringement of Regulations
Compliance information (see appendices 2 and 3) should be exchanged between
agency and hirer to ensure that the rights of agency workers are met. Liabilities for
Day 1 rights lie with the hirer. Any breach in the 12 week qualifying entitlements
could initially be laid at the door of the agency but both the agency and the hirer can
be considered liable to the extent that each is actually responsible for the failure.
Even if the agency is initially responsible for the breach of the equal treatment
principle, it will have a defence if it took “reasonable steps” to obtain relevant
information from the hirer about its employment conditions.
Under such
circumstances, the hirer becomes liable for any infringement of rights.
If an Employment Tribunal upholds an agency worker’s complaint - for example if
they have been denied access to a facility – there is no maximum award but there is
a minimum award of two weeks of pay regardless of the value of the loss.
5.4 Collective Consultation with Unions
The regulations add to the list of information that must be given during collective
redundancy, TUPE and other statutory consultations to union representatives. Hirers
are required to state the total number of agency workers employed, the areas of the
organisation in which they are engaged and the type of work they are contracted to
undertake.
6. INCREASED COSTS OF USING AGENCY WORKERS
Costs to the University are likely to increase in the following areas:
 increased pay/benefits, the extent of which depends on the difference in pay and
other terms between agency workers who accrue 12 weeks or more service and
comparable employees and the extent to which agency workers are engaged for over
12 weeks. It is possible, but unlikely that costs may arise from the collective facilities
provisions within the University
 indirect costs will be incurred in managing compliance, avoiding unintentional
breaches of the Regulations, collating and keeping information, sharing information
through collective consultation and in working with employment agencies
 there will also be costs involved in responding to any claims of unequal treatment
7. OPTIONS FOR HIRERS
This legislation effectively removes many of the benefits for employers that have been
associated historically with employing agency workers. In view of this, managers may
wish to consider:
 Reducing (or altogether ceasing) the use of agency workers
 Restricting all agency worker contracts to under 12 weeks duration
 Negotiating contracts with genuinely self-employed individuals or limited company
contractors
 Using directly employed casual staff
 Directly recruiting temporary workers to short fixed term contracts
APPENDIX 1
PROCEDURE FOR ENGAGING AGENCY WORKERS
Before applying for authorisation and engaging an agency worker please ensure you
have read the guidance above and have assessed your needs and alternatives
available to you, as there may be a more cost effective means of meeting them.
If, having read the guidance you consider that an agency worker is the most
appropriate way of meeting your needs, please refer to the procedure below.
1. Define the Role
Draw up the job description and person specification (see appendix 2) for the role either
with reference to the most recent job description for the role, or by drawing up a list of
the main duties, responsibilities and attributes required. In either case the role should be
graded by your HR Advisor.
2. Apply for Authorisation
Complete the Agency Worker Authorisation Form (see Appendix 5) and send it to the
Chief of Operations and Estates for approval on behalf of the Executive Operations
Group.
3. Choose an Agency
An approved supplier agreement has been developed via a tender process with a
number of agencies. Where the approved providers are unable to supply appropriately
skilled workers, you may seek to use a specialist agency. The approved supplier list can
be found on the intranet at http://www1.aston.ac.uk/staff/centralprocurement/buying-ataston/products/?char=S. Select ‘S’ on the A-Z to access the staff recruitment agencies.
4. Communicate Full Information about the Role to the Agency
4.1 Send a copy of the completed, graded job description to the agency, as this will
be essential in determining the University terms and conditions to which workers will
be entitled should they reach the 12 week qualifying period.
4.2 Notify the agency of any identified risks associated with the work and what has
been done to mitigate them. It would be good practice to complete and provide the
agency with a risk assessment. The HSE have published a useful guide to carrying
out
risk
assessments
which
can
be
found
at
http://www.hse.gov.uk/pubns/indg163.pdf. It is the agency's responsibility to ensure
that the agency worker provided is fit for the role. (Where reasonable adjustments
are required (e.g if the agency worker is disabled) you may wish to seek advice from
your HR Advisor.)
4.3 Identify any relevant checks needed and ensure that the Agency is aware of them
(e.g. Criminal Record Bureau Disclosure). It is the Agency’s responsibility to
undertake and notify you of the outcome of these, including the eligibility to work
check.
4.4 Raise a purchase order for the work and include a note on the purchase order of
the number of agency workers required and the type of work to be undertaken.
4.5 Forward Appendices 3 and 4 to the Agency. It is not necessary to send
appendices 3 and 4 if you are using a supplier who is not on the approved supplier
list. Agencies on the approved supplier list will be kept up to date with information
automatically.
5. Extending the Period of Appointment
If the period of appointment needs to be extended, further authorisation should be
sought from the Chief of Operations and Estates on behalf of the Executive Operations
Group and a new purchase order should be raised.
6. Action Required Where the 12 Week Qualifying Period is Reached
You should be advised by the Agency if the individual allocated, has or will reach, the 12
week qualifying period during the engagement. The Agency should also advise you of
any increase in the hourly rate and any other increased costs required to ensure the
provision of equal treatment in line with the legislation. In such circumstances you
should check that the full costs do not exceed the level of funding specified on the
purchase order. Where it does you will need to either cancel and reissue the purchase
order or ask the relevant member of staff in Purchase Ledger to amend the purchase
order (contact Dally Rama for suppliers between A – C, Sheila Powell for suppliers
between D – N an Mel Davies for suppliers between O – Z).
7. Managing the Agency Worker Relationship
The University does not have an employment relationship with an agency worker, and as
such it is important that the 'hirer' relationship is managed in a way that is consistent with
this.
For example: changes to terms and conditions, performance and conduct issues should
be dealt with through the agency. The agency worker should also be directed to report
all absences, requests for leave or concerns (except those in relation to access to Day 1
rights) to their agency.
On Day 1 you should ensure you:
7.1 Provide a basic induction (see Local Induction: A Manager’s Guide) and complete
induction checklist amending as relevant. This checklist should be retained for six
months from the end of the assignment as a defence against any claim.
7.2 Consider what health and safety information, instruction and training is needed
and arrange for this to be provided.
Should you wish to allocate the agency worker further work that is substantially different
from that which they were originally engaged to undertake (for example, where the new
work requires a different set of skills or competences and/or a different rate of pay) you
must inform the Agency of this and give them an updated job description. This is
essential to avoid any new service inappropriately contributing to the agency worker’s 12
week qualifying period. If you are uncertain as to what would amount to a substantially
different role please seek advice from your HR Advisor.
8. Complaints About Day 1 Rights
Should an agency worker advise you that they have concerns in relation to accessing
Day 1 provisions, please seek advice from your HR Advisor promptly.
9. Complaints about 12 Week Rights
All requests for information by the agency worker in relation to equal treatment should be
directed to the relevant agency immediately and your HR Advisor should be informed of
this.
APPENDIX 2
JOB DESCRIPTION TEMPLATE FOR AGENCY WORKERS
This template should be completed for each prospective agency worker. The job
description should then be passed to your HR Advisor to confirm the grade. Once
this has been done it should be sent to the relevant agency and a record should be
retained locally.
ACTION POST-ENGAGEMENT
1. Provide the agency worker with a copy of the job description as part of her/his induction.
This document will form the basis of their induction process.
2. Should you be advised by the Agency that the worker is due to reach the 12 week
qualifying period it is essential you check that the activities they are undertaking still fall
within the grade allocated for the work.
3. Should the work they undertake become substantially different (e.g. requiring different
skills/knowledge/pay) please amend the document, check it with your HR Advisor and
send it to the agency. This is essential to avoid any new service inappropriately
contributing to the agency worker’s 12 week qualifying period. If you are uncertain as to
what would amount to a substantially different role please seek advice from
Human Resources.
School/Department:
Job Title:
Reporting to:
Aston Grade:
Job Purpose:
Describe the overall purpose of the job in no more than two or three sentences.
Key Duties and Responsibilities:
Summarise as bullet points the main duties involved in this role in order of importance,
including planning and organising and any resource management responsibilities.
Person Specification:
List the attributes that the agency workers will need to possess in order to carry out the role,
amending the form as appropriate to suit the requirements of the role.
Be aware that the attributes you describe within the person specification will form the basis
on which the Agency will identify who can best meet your requirements.
Criteria
1.
Qualifications and Experience
List the experience and qualifications required e.g
 manual lifting
 proven ability to use excel
 clean driving licence
Essential
Desirable


part qualified accountant
demonstrable experience of working with relevant
systems, policies, legislation and quality standards
2.
Skills and Attributes
List the skills and attributes necessary to do the job e.g
 Effective written and verbal communication skills
 good report writing skills
 Excellent customer service skills, with ability to
respond efficiently and effectively to phone and email
enquiries
 Ability to develop creative approaches to problem
solving
 Ability to analyse and solve problems
 Ability to assess and organise resources, and plan
and progress work activities
 Tact and diplomacy
 Ability to remain calm under pressure
3.
Other Relevant Factors
List any other factors relevant to the role e.g
 Must be flexible in relation to hours of work
 Enhanced CRB disclosure required
 Food handler – must have passed basic hygiene
certificate within the last two years
APPENDIX 3
HOURLY RATES OF PAY FROM 1 AUGUST 2014 (excluding holiday pay)
Areas in grey represent contribution points and are not part of the normal incremental scale .
Aston also pays a non-contractual, discretionary additional payment designed to ensure that
Aston’s rates of pay are fair and compare with the rates recommended by the Living Wage
Foundation, or are adjusted so that differences in pay based on levels of responsibility are
maintained.
The Aston Pay Supplement is reviewed annually, taking into account these same
considerations, and therefore may be increased, reduced or withdrawn dependent on the
rate of increase in national pay and comparator rates.
The current supplement rates are as follows:
Pay scale spine point
1
2
3
Supplement Rate
£0.52p per hour
£0.36p per hour
£0 16p per hour
APPENDIX 4
RELEVANT TERMS OF EMPLOYMENT FOR AGENCY WORKERS WITH 12 WEEKS
QUALIFYING SERVICE
1. Hours of Work
Unless specified otherwise, the normal weekly hours of work at Aston University are
36.5.
2. Pay
In appendix 3, Aston University’s salary scales have been converted to hourly rates of
pay which exclude any element of holiday pay. These pay scales are incremental on an
annual basis up to the first contribution point of any scale. Staff in post on 1 January are
entitled to receive an increment on 1 April in that year and annually on 1 April thereafter.
3. Holiday Pay
Staff in Grades 1 to 6 are entitled to 25 days annual leave plus 13 Bank
Holiday/University closure days per annum. Staff in Grades 7 to 10 are entitled to 30
days annual leave plus 13 Bank Holiday/University closure days per annum. Holidays
are reduced on a pro rata basis for part time staff. In years where an additional Public
Holiday is granted, this is added to the holiday entitlement for the year.
4. Overtime
Staff in the University may on occasions work additional hours outside their normal
patterns of work by prior arrangement with their managers.
Where staff in grades 1 – 6 are requested and agree to work over 36.5 hours in a given
week (or shift cycle if they are shiftworkers), compensation will given either as TOIL, or
overtime pay, the method of compensation to be at the discretion of the relevant
manager.
Staff in grade 7 and above who work such occasional additional hours are not eligible for
compensation other than Time Off In Lieu (TOIL).
For staff in grades 1 – 6 who work a specified five-day week and are not designated
shiftworkers, overtime will be paid on the basis of 1½ x basic rate where the overtime is
worked on a designated working day or on the first rest day and at 2 x basic rate for the
second rest day, for bank holidays and for University closure days.
For staff in grades 1 – 6 who are contracted to work any five out of seven days and are
not designated shiftworkers, overtime will be paid on the basis of 1½ x basic rate where
the overtime is worked on a working day or on the first rest day and at 2 x basic rate for
the 7th day, for bank holidays and for University closure days.
Overtime for staff in grades 1 – 6 who are designated shiftworkers will be paid at 1 ½ x
basic rate for the first 10 additional hours and at 2 x basic rate thereafter for hours
worked within a single shift cycle.
Part-time workers become eligible for enhanced over time rates only when they have
worked 36.5 hours in a week.
5. Performance Related Pay
Staff in post on 1 February are eligible to be considered for Performance Related Pay
(PRP), subject to a review of their performance through a Performance Development
Review (PDR). PDRs normally take place during the summer with PRP awards normally
being made in Autumn. The timing and affordability of PRP is reviewed on an annual
basis and is not guaranteed.
6. Allowances for Staff in Grades 1 to 3
The working patterns of staff in the University vary according to local practice. Most
involve Monday-Friday work spread over reasonably regular hours. However, where
non-standard patterns of work are undertaken by support staff, the following apply:
a) Rest Day Enhancements
Where hours worked by staff in grades 1 – 3 are within the first 36.5 hours in any
given week, but fall on the first rest day (or 6th working day if contracted to work for 5
out of 7 days), an enhanced rate of 1 ½ x basic pay will apply to those hours..
Similarly, 2 x basic rate will apply to hours worked by staff in Grades 1 – 3 on their
second rest day (or 7th working day if contracted to work for 5 out of 7 days).
For hours in excess of 36.5, rest day enhancements will not be paid, but overtime
rates will.
Enhanced pay rates will not apply where compensating time off in lieu (TOIL) has
been agreed.
The same principles will apply to part time staff e.g. where a part-time member of
staff is contracted to work any 3 days out of 7, enhanced rates would be paid for any
hours worked on the 6th and 7th day in any given week.
b) Unsocial Hours
Other than for staff designated as ‘Nightworkers’ (see below), a premium of 1 1/5 x
basic rate will be paid for staff in Grades 1 – 3 who work between 22:00 and 24:00
and 1½ x basic rate will be paid for hours worked between 24:00 and 06:00 where no
shift or nightworker allowance is in place.
Unsocial Hours payments are only payable where the hours worked fall within the
first 36.5 hours worked in any given week. For additional hours, overtime rates will
be paid.
c) Nightworkers
Nightworkers are those staff (other than shiftworkers) for whom a large proportion
(i.e. more than 50%) of their contractual working hours fall between 22:00 and 06.00.
For staff in Grades 1 – 3 who are designated as ‘nightworkers’, a supplement of 1 1/3
x basic rate will be paid for all hours which fall between 22:00 and 06.00.
7. Shift Premia
Aston University defines shift workers as members of support staff who in order to cover
their normal local operational requirements, are contracted to work to a working pattern
other than that of reasonably regular hours based on working for 5 days (FTE) per week.
Shift premia are payable where the pattern is integral to the employee’s ‘normal’
working week. The premia include payment for scheduled work on bank holidays,
University closed days and weekends. Any overtime worked on such days will be
enhanced according to the overtime arrangements outlined above.
In such circumstances, please approach Human Resources for details of the shift
premium that would apply.
APPENDIX 5
AGENCY WORKER AUTHORISATION FORM
Before engaging an agency worker please ensure you have read the guidance above
and have assessed your needs and alternatives available to you, as there may be a
more cost effective means of meeting them (e.g reallocating resources more flexibly,
reprioritising workloads, recruiting via the Job Shop, engaging a directly employed
casual worker or employing a fixed term worker).
If, having read the guidance you consider that an agency worker is the most
appropriate way of meeting your needs, authorisation to use an agency workers must
be sought from the Chief of Operations and Estates on behalf of the Executive
Operations Group. To do this, please complete the authorisation form below. You
must not place an order with an agency until your request has been authorised.
Recruiting Area
Name of Recruiting Manager
Nature of Assignment
Please state whether this is a new assignment or an
extension of an existing assignment
Nature of Work
e.g Reception, General Administration, IT Specialist
Weekly Hours of Work
Length of Assignment
From
To
Grade of Post
Signature of Recruiting
Manager
Date
Special Conditions
Approved on behalf of EOG
Date