Human Resources People and Organisational Development. Agency Workers Managers Guidelines

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1 Human Resources People and Organisational Development Agency Workers Managers Guidelines September 2011 Revised September 2015

2 Contents Introduction... 3 Who is an agency worker?... 3 Using agency workers... 3 The Agency Worker Regulations (AWR)... 3 Complying with the Regulations... 4 Liaising with employment agencies... 4 How do I request a new agency worker?... 5 Completing the Agency Worker Requisition form... 5 References and qualifications... 6 DBS disclosures... 6 Once an agency worker is in post... 6 Day one protocols... 6 Extending an assignment... 7 Filling permanent vacancies with existing agency workers... 7 Managing agency workers... 7 Annual holidays... 7 Other absences... 8 MyAppraisal... 8 Training... 8 Risk Assessments... 8 Disciplinary and grievance procedures... 8 Pregnant agency workers... 9 Antenatal appointments... 9 Pregnant Workers Risk Assessment... 9 Time off to accompany a woman to antenatal appointments / Time off for adoption appointments for adoptive parents... 9 Complaints... 9 Summary of supporting documents and forms

3 Introduction These guidelines refer to the law and best practice on managing agency workers. They aim to help managers understand their legal obligations when engaging agency workers and the possible employment law risks in such arrangements. They also provide advice on liaising with employment agencies. Who is an agency worker? An agency worker (often referred to as a temp ) is someone who has a contract with the employment agency but works temporarily for and under the direction and supervision of a hirer. Using agency workers Agency workers offer great flexibility as an additional staffing resource. They can fill in staffing gaps, often at very short notice, and can be engaged for anything from a few hours or weeks or months at a time. Before considering an agency worker arrangement, consider whether that is the most suitable option or whether an alternative arrangement, e.g. a temporary or fixed term contract, might be preferable. You can seek advice from HR on the various options. Agency workers should normally only be used in the following circumstances: To cover periods of employee absence, e.g. extended leave, sickness absence, maternity, adoption, paternity or parental leave (where it is not possible to cover the absence in other ways); To assist with staff shortages due to resignations or dismissals while a permanent replacement is being recruited, or during periods of vacancy management/approved delay processes; To work on a particular short-term project or task; and Assist during peak periods of demand. The university has a preferred supplier arrangement in place with Unitemps who will be able to provide agency workers across a range of different professions either from their own resources or through their arrangements with secondary suppliers, including at a senior level. The Agency Worker Regulations (AWR) The AWR introduce certain rights and entitlements for agency workers which entitle them to enjoy the same basic employment terms and conditions as employees who are recruited directly to work for the employer. For example, an agency worker placed temporarily with DMU to provide administrative support will be entitled to the same rate of pay, annual leave, incremental progression as a DMU employee working in a similar role. Under the AWR, an agency worker only qualifies for these rights after they have worked continuously for the employer for 12 weeks, but there are some rights that they become entitled to from day one of their placement with the hirer. They will not however, be entitled to certain benefits that are only associated with genuine employee status e.g. they will not have the right to occupational sick pay or redundancy pay. 3

4 Although the AWR refer to a qualifying period of 12 weeks, DMU does not apply this qualifying period. This means that any agency worker placed with DMU will become entitled to the same basic pay and terms and conditions from day one of their placement. Agency workers will be entitled to be treated equally in respect of the following: Basic salary Annual increments (where applicable) Overtime and shift payments (on same basis/qualifying conditions as directly employed staff) Duration of working time Rest breaks/restrictions on night work Annual leave (normal entitlement for employees) Bonuses and additional payments (where applicable) Vouchers which have a fixed monetary value that can be exchanged for goods and services e.g. eye care vouchers, luncheon vouchers (not applicable if only available via salary sacrifice arrangements) Access to canteen facilities Access to library facilities Access to gym facilities Access to information about job vacancies Paid time off for ante-natal appointments (see Pregnant Agency Workers) They are not entitled to: Occupational sick pay (the AWR do not affect an agency worker s statutory entitlement to statutory sick pay) Redundancy pay (statutory or enhanced) Maternity/paternity/adoption pay (statutory entitlements are not affected) Notice pay (statutory and contractual linked to loss of employment) Pension 1 Long service or loyalty bonuses Complying with the Regulations As our preferred supplier, the majority of DMU agency workers are supplied through Unitemps and DMU has worked closely with Unitemps to agree the systems and processes required to ensure that agency workers are treated in accordance with the AWR and, wherever possible, managers should use Unitemps for supply of agency workers. However, it is recognised that in some circumstances managers may need to hire agency workers from alternative / specialist agencies. In these situations it is important that agency workers are treated in accordance with the law and university policy. Managers should be aware that the Procurement Team hold a list of approved suppliers of agency workers and alternative providers must be selected from this list. If it is not possible to engage the required worker from the approved list managers are advised to liaise with their HR adviser. When using external agencies, the service level agreement should be drawn up as part of the contractual process. Liaising with employment agencies Managers wishing to use an alternative supplier should read the terms of business of any agency carefully before agreeing to engage an agency worker. Particular provisions to consider 1 Separate provisions under the Pension Act 2008 will afford pension provision to agency workers from

5 include: Fees payable for engagement of the agency worker; The employment status of the agency worker; Notice provisions from either party for termination of the temporary arrangement; The transfer fee on temporary to permanent employment; and Repayment of the transfer fee if permanent employment is terminated. In the first instance, an agency that is on the approved suppliers list should be used. In situations where that is not possible and you wish to recruit from an agency that has no existing relationship with DMU, you need to seek advice from HR. How do I request a new agency worker? Managers requiring an agency worker should complete the Agency Worker Requisition form available on the Staff Pages. An authorised signatory for your department should sign the form and a copy should be ed to your HR adviser. A call then needs to be placed with Unitemps to discuss requirements. You need to give Unitemps as much detail as possible so they can find the best candidate. If the agency worker is required to fill an established role, it is advisable to provide Unitemps with a copy of the relevant job description and role profile. Unitemps will then either provide you with a suitable candidate or provide you with CVs in order for you to select or shortlist for interview potential candidates. If you are booking an agency worker through Unitemps for the first time, you can arrange to meet the branch manager or consultant face-to-face. This enables Unitemps to fully understand your requirements. Please contact the branch to arrange an appointment. Completing the Agency Worker Requisition form The Agency Worker Requisition form is available on the Staff Pages. The pay rate for the agency worker should be appropriate to the grade in which the job role falls on the DMU pay scales. If you need clarification on what this is, please contact your HR adviser. If you need an agency worker for a role/task where we do not have a role profile or established job grade, there is an option on the form for you to describe the job and the knowledge, skills and experience required. Speak to your HR adviser about an appropriate pay rate before contacting Unitemps to discuss your requirements. You must provide a purchase order number at the time of placing the booking otherwise the order will not be accepted. At the time of booking you will need to give an indication as to the expected length of the booking. If the booking is open ended, (i.e. if the end date is not known), a realistic review date must be agreed. 5

6 References and qualifications Unitemps will be responsible for all normal pre-employment checks (such as eligibility to work in the UK) although you can request to view references if you wish. You can also ask to have sight of any qualifications that are specifically required for the job. DBS disclosures If the agency worker is to be assigned to a role that requires a satisfactory DBS check, again, Unitemps will ensure that this is sought. You should request confirmation of their DBS clearance status from the agency, the level of disclosure (standard or enhanced) and the date when the disclosure was obtained. If the disclosure is more than three years old, a new DBS disclosure will be required. Seek advice from HR if you are unsure of whether the role will require DBS clearance. Once an agency worker is in post An agency worker must not start work at DMU without confirmation of their eligibility to work in the UK being received. Having agreed to use an agency worker, you are required to approve their online timesheets, which the agency worker will submit on the Unitemps website on a weekly basis. Day one protocols There are certain actions that need to take place on the first day of an agency worker s placement. If the agency worker has been hired via Unitemps, they will have been provided with an Induction Checklist. However, for workers who are hired through alternative agencies, you will need to provide them with this checklist before their first day by liaising with the employment agency. The Agency Worker Induction Checklist is available on the Staff Pages. The induction checklist is intended to ensure agency workers are informed of their rights in terms of access to the library, sports centre, car parking access, staff ID card, staff discounts etc. and other information regarding their placement with DMU. The Induction Checklist also advises the agency worker of where DMU job vacancies are advertised and how to apply for posts as required by the AWR. (NB they are not entitled to apply for vacancies if there is a genuine redundancy / redeployment situation, e.g. where the university is trying to redeploy existing internal staff in order to prevent a redundancy situation.) It is important to adhere to these protocols to ensure that we are complying with our legal obligations as a hirer of agency workers. On their first day, you should also refer to the Managers Induction Checklist for Agency Workers to ensure the agency worker has an initial induction from their immediate supervisor on their first day and the necessary housekeeping, operational and health and safety matters can be covered before they commence their duties, or as soon as possible after. The Managers Induction Checklist for Agency Workers is available on the Staff Pages. (Please note that this is separate from the Induction Checklist referred to above that the Agency Worker receives from Unitemps in advance of their placement with DMU. See Summary of supporting documents and forms at the end of this document.) 6

7 Extending an assignment If you need to extend the agency worker s assignment in the same role, your department s authorised signatory should the Agency Worker Requisition Extension of Assignment form (available on the Staff Pages) to Unitemps. Unitemps will then contact you to confirm the arrangements. If you wish to employ the same agency worker in a different role you will need to follow the process described above as it is a new request. See How do I request a new agency worker. Filling permanent vacancies with existing agency workers If following the engagement of an agency worker you wish to proceed to recruit to the post you will not be able to confirm the agency worker into direct employment. All posts must be filled in line with the Recruitment and Selection Policy including seeking SRG approval and advertising the vacancy in the normal way. The agency worker will be able to apply for vacancies including internal only vacancies, but normal recruitment and selection policies and processes must be followed. If an agency worker placed with the university applies for an advertised job (internal or external), goes through a full recruitment and selection process and ultimately is the preferred candidate, Unitemps will not charge the university a transfer fee. Other agencies will have different terms of business and therefore you will need to seek advice on a case by case basis if the agency worker is not from or supplied via Unitemps. As noted above, agency workers are not entitled to apply for DMU vacancies if there is a genuine redundancy / redeployment situation, e.g. where the university is trying to redeploy existing internal staff in order to prevent a redundancy situation. Managing agency workers Annual holidays Agency workers are entitled to the same pro rata entitlement to contractual holidays as directly employed DMU employees in equivalent roles. The agency worker should request to take leave from you as their manager in the normal way (giving reasonable notice etc.) and notify their agency of the days they intend to take as leave. It is the responsibility of Unitemps to advise the agency worker of their entitlement to holidays and keep track of the amount of leave taken by the agency worker. The agency worker can request holidays in the normal way by completing a Holiday Request form. Requests for leave should be managed in the same way as requests made from directly employed staff i.e. wherever possible you should try and accommodate the agency worker to take their leave however you will also need to consider the needs of the university / sufficient cover, etc. when approving leave requests. If the worker is prevented from taking their leave and/or they have not had a reasonable opportunity to take their leave, they will be entitled to a payment in lieu at the end of their placement. 7

8 Other absences If the agency worker is unable to attend work for any reason, they must inform you as their DMU manager and Unitemps (or the relevant agency) as soon as possible. MyAppraisal It will not be necessary or, in the majority of cases, appropriate to follow an appraisal process for agency workers, particularly as these processes cover long-term career aspirations. However, where the outcome of an appraisal is linked to a pay increase, then you should seek advice from HR on the correct process to follow. This is only likely to occur in cases where the agency worker is occupying a senior level post. Training While an agency worker does not have the right to access the same in-house training that might be made available to an employee, managers should ensure that agency workers are given basic minimum, and/or statutory training to fulfil legal requirements and to ensure that the agency worker is effective in their role. For example, it may be necessary to train agency workers on in-house / bespoke IT systems to ensure they are able to carry out their role with the university effectively. Risk Assessments Before taking on a new agency worker managers must ensure that risk assessments are up to date. Agency workers should have the normal risk assessments carried out as would apply to DMU employees, e.g. DSE Workstation Risk Assessment. Any Personal Protective Equipment (PPE) required for the agency worker to carry out their duties safely will be the responsibility of DMU to provide. Disciplinary and grievance procedures If an agency worker commits an act of misconduct this should be referred to Unitemps in line with the Service Level Agreement in place. DMU managers should not actively lead when dealing with an agency worker in respect of: Any disciplinary meeting Any grievance meeting Any formal investigatory interview All aspects relating to poor work performance Any issues of this nature should be referred Unitemps to manage. Where the agency is on the approved supplier list (the Procurement Team will advise), the agreement on how these matters are handled will be explicitly set out within the agreement between the university and the agency. Therefore, wherever possible, only agencies that have an agreement in place with the university should be used. 8

9 Pregnant agency workers Antenatal appointments Pregnant agency workers should be given paid time off to attend antenatal care appointments and antenatal classes when on assignment. Agency workers should be treated no less favourably than a directly-employed DMU employee in the exercise of these rights. See the university s Maternity, Adoption and Paternity Leave Policy: Time off for antenatal care or to accompany a woman to antenatal appointments. Pregnant Workers Risk Assessment If an agency worker notifies you that they are pregnant (or Unitemps notifies DMU on behalf of the agency worker), there will be a need for a Pregnant Workers Risk Assessment to be carried out in accordance with existing risk assessment processes. It is the pregnant agency worker s DMU manager who is responsible for ensuring the risk assessment is conducted. If a risk is identified, DMU will need to make an adjustment if it is reasonable to do so. If it is not reasonable Unitemps should offer alternative suitable work if available. This is the responsibility of the agency; DMU is not obliged to redeploy the agency worker. If alternative work cannot be found, then the pregnant woman will have the right to be paid by Unitemps for the remaining expected duration of the original assignment. Time off to accompany a woman to antenatal appointments / Time off for adoption appointments for adoptive parents Agency workers who are in a qualifying relationship with a pregnant woman or her expected child are entitled to take time off to accompany the woman to appointments at any place for receiving antenatal care. Agency workers are entitled to time off to attend adoption appointments that have been arranged by or at the request of the adoption agency. Agency workers should be treated no less favourably than a directly-employed DMU employee in the exercise of these rights. See the university s Maternity, Adoption and Paternity Leave Policy: Time off for antenatal care or to accompany a woman to antenatal appointments and Time off for adoption appointments for adoptive parents. Complaints If the agency worker is supplied from or via Unitemps, the complaints process is set out within the Service Level Agreement between Unitemps and DMU. Complaints are monitored by DMU to ensure that issues are resolved and trends identified. Details of the issue should be discussed directly with the agency so that they may take appropriate action in line with their processes and the agreements they have in place with DMU (where applicable). 9

10 Summary of supporting documents and forms Document / Form Purpose Responsible for completion Agency Worker To request a new Relevant DMU manager Requisition agency worker When Before the agency worker starts in post Agency Workers Induction Checklist To inform the agency worker of their pay, terms and conditions and other matters relating to their placement with DMU. Unitemps Before the agency worker starts in post Managers Induction Checklist for Agency Workers To provide the agency worker with an induction to the university, role clarification, and ensure important housekeeping, operational and health and safety processes are covered. Immediate supervisor (DMU) On first day of the placement. Service Level Agreement between De Montfort University and Unitemps Sets out the agreement between the university and its master vendor provider for agency staffing For information Kept under review 10