AGENCY WORKERS GUIDANCE FOR MANAGERS

Transcription

1 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

2 AGENCY WORKERS GUIDANCE FOR MANAGERS 1. INTRODUCTION The Agency Workers Regulations 2010 came into force on 1 October 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

3 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.

4 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

5 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 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 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

6 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. 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.

7 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 Essential Desirable 1. Qualifications and Experience List the experience and qualifications required e.g manual lifting proven ability to use excel clean driving licence part qualified accountant

8 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 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

9 APPENDIX 3 HOURLY RATES OF PAY (excluding holiday pay) Please refer to the current salary scales on the HR Intranet

10 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 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 7 th 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.

11 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 nonstandard 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 6 th 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 7 th 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 6 th and 7 th 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 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 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.

12 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