Agency Workers Regulations Procedure

Transcription

1 Agency Workers Regulations Procedure Procedure Reference Number: Approved: Name Date Author: Susan Poole HR Advisor Produced: 12/02/13 Review due: 3 years from publication Review approved: (For reviewed procedures only) date. Name Date Version Not Protectively Marked 1

2 Procedure Index ELECTRONIC NAVIGATION: - move the cursor over the page number in the index or blue underlined text until a hand appears. Click the left mouse button once and it will jump to the specified part of the document. 1. Procedure Aim/Purpose/Scope Guidance Responsibilities Appeals Compliance... 9 Version Not Protectively Marked 2

3 1 Procedure Aim/Purpose/Scope 1.1 Cheshire Constabulary is committed to ensuring that it delivers excellent services at all times. The organisation will, where necessary, use temporary agency workers to help to fulfil the demands and maintain the highest standards of service. This procedure applies to all individuals responsible for hiring temporary agency workers and to all temporary agency staff while they are on assignment with the organisation. 1.2 Regulations came into force on 1 October 2011, giving agency workers the entitlement to the same basic employment and working conditions as if they had been recruited directly, if and when they complete a qualifying period of 12 weeks in the same job. It is not retrospective and for those agency workers already on assignment, the 12 week qualifying period starts from 1 October From 1 October 2011, agency workers are entitled to access to facilities and information on job vacancies from Day 1 of their assignment. 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 (Cheshire Constabulary). Click Here to Return to Index 2 Guidance 2.1 Definitions Who is covered by the Regulations? Temporary Work Agency Agency Worker Hirer Temporary Work Agency A Temporary Work Agency supplies agency workers to work temporarily for a third party (the hirer). Our current supplier falls within the remit of the Agency Workers Legislation, however, existing or new contractors/consultants, are not covered by the legislation. Agency Worker An agency worker (often referred to as a temp ) is someone who has a contract with the Temporary Work Agency. Version Not Protectively Marked 3

4 Hirer Not Protectively Marked The hirer (end-user) is a person - e.g. company, partnership, sole trader, public body who is engaged in economic activity (whether or not for profit) and which books agency workers via a Temporary Work Agency. For example: Cheshire Constabulary. 2.2 When agency workers will be used Cheshire Constabulary will use temporary agency workers to provide additional resources and allow for flexibility on a short-term basis from time to time. The organisation will hire temporary agency workers from our current supplier to assist in relation to: occasional work, such as one-off projects; seasonal peaks, sudden increases in demand for the organisation s services; and the absence of employees, for example due to sickness Process for hiring agency workers Agency workers may be hired through the Constabulary s current contractual arrangements. Where additional temporary resources are required, the line manager should submit a Recruitment Authorisation Form to the Multi Force Shared Service Centre HR. No agency worker will be hired without prior written approval from the budget holder following liaison with their Human Resources Business Partner. Multi Force Shared Service Human Resources will process the initial request with the managed service provider. Recruiting managers are then responsible for shortlisting, interviewing and notifying Multi Force Shared Service of the successful candidate. Multi Force Shared Service will ensure relevant recruitment checks are carried our prior to the commencement of the assignment. It is the responsibility of all managers and the Multi Force Shared Service representatives to ensure compliance with this process. 2.3 Scope of Equal Treatment This section covers the entitlements that agency workers will receive from the first day of an assignment and their entitlements in relation to basic working and employment conditions following a 12 week qualifying period and the timing of the receipt of the entitlements. Please note: Agency workers are already entitled to a range of statutory protections under the Working Time Regulations, National Minimum Wage etc Rights Under the Regulations Day 1 rights for all agency workers Version Not Protectively Marked 4

5 The regulations give agency workers the same access to: a) Rights including access to information on job vacancies b) Collective facilities and amenities provided by the hirer. In the context of a) the regulations make a specific allowance that access to information on job vacancies does not apply in the context of a genuine headcount freeze where posts are ring fenced for redeployment purposes or internal moves which are a matter of restructuring and redeploying existing staff in order to prevent a redundancy situation In respect of b) the facilities and amenities may include: A canteen or other similar facilities Transport services (but not company car allowances or season ticket loans) Toilets/shower facilities Staff common room Mother and baby room Prayer/Quiet room Vending machines Car parking It is important to note that this is not an exhaustive list and the right to equal access will apply to other facilities and amenities of a similar nature What does this mean for Cheshire Constabulary? Day 1 Access to: Canteen Staff Car Parking (where available) Enhancements to statutory entitlements Flexi Gym (membership is payable) The organisation will provide information about relevant vacancies via the intranet, agency workers will be able to apply for job vacancies from day one of their assignment. The exception to this is if the organisation implements a headcount freeze due to an internal re-organisation After 12 weeks of an assignment Equal treatment Once an agency worker has completed 12 continuous weeks with Cheshire Constabulary in the same role, he/she will be entitled to the same basic working and employment conditions that would apply to employees or workers who have been directly recruited to the same job. This includes pay, duration of working time, rest periods and breaks, and annual leave. Time off for antenatal appointments is included and the right to be suspended from work if an insurmountable risk related Version Not Protectively Marked 5

6 to pregnancy is identified and an alternative assignment cannot be indentified. Cheshire Constabulary will liaise with the agency to ensure that the agency worker receives equal treatment. Pay All agency workers will be entitled to the same basic pay to which an employee or worker who has been directly recruited to the same job would be entitled, including being entitled to any across-the-board or pay increment that would apply had they been hired directly. This includes pro rated salary, overtime pay, unsocial-hours allowance, shift allowance and vouchers or stamps which have a monetary value and are not salary sacrifice schemes. It does not include any bonus or reward given to employees or workers for a reason that is not directly attributable to the amount or quality of the work that they have done. Adoption, maternity, paternity and sick pay will be paid for and managed by the agency. Annual leave Agency workers will be entitled to the same paid annual leave to which an employee or worker who is recruited directly to the same job would be entitled. This leave entitlement will be pro rated to the length of the assignment. Working hours Agency workers will work the same basic working hours as an employee or worker who is recruited directly to the same job. There may be circumstances in which agency workers will, if they wish, be able to opt out of the maximum 48-hour working week under the Working Time Regulations Any worker who has not signed the opt-out or who has revoked his/her opt-out will not be requested or permitted to work more than the maximum number of working hours permitted under the Working Time Regulations Rest periods Agency workers will be entitled to the same rest periods and breaks to which an employee or worker who is recruited directly to the same job would be entitled. Night work Agency workers will be entitled to the same arrangements for night work to which an employee or worker who is recruited directly to the same job would be entitled Weeks The qualifying clock The 12 week qualifying period is triggered by working in the same job with the same hirer for 12 continuous calendar weeks. Calendar weeks will be accrued Version Not Protectively Marked 6

7 regardless of how many hours the worker does per week and no time prior to 1 st October 2011 will count. Summary of how absence affects the qualifying clock Type of absence that affects the qualifying clock Agency worker begins a new assignment with a new hirer (see below) Agency worker remains with the same hirer but is no longer in the same role Break between assignment of 6 weeks or more (which is not one which pauses the clock or during which it continues to tick) Any reason where the break is less than 6 weeks Sickness absence Annual Leave Jury service Industrial action Pregnancy and maternity related absence* Statutory maternity, paternity or adoption leave Effect on 12 week qualifying period Clock resets Clock resets Clock resets Pauses the clock Pauses the clock for up to 28 weeks Pauses the clock Pauses the clock for up to 28 weeks Pauses the clock Clock keeps ticking Clock keeps ticking * Pregnancy and maternity related absence All workers are encouraged to arrange antenatal appointments outside working hours where possible. The organisation may request written evidence of the antenatal appointment (except for the first appointment). A new hirer must be a different person or be a different legal entity. Moving an agency worker around multiple sites will not usually break continuity unless it is a substantively different role (see below). Substantively different - the worker duties which make up the whole or main part of a role must be substantively different. Transfers between similar administrative functions; movement within a single, relatively small business unit or increases in pay rates are not enough to constitute substantive difference. The following questions can help to establish if the work or duties are substantively different: Are different skills and competencies used? Is the pay rate different? Is the work in a different location/cost centre? Is the line manager different? Are the working hours different? Does the role require extra training and/or a specific qualification that wasn t needed before? Version Not Protectively Marked 7

8 Is different equipment involved? Not Protectively Marked Click Here to Return to Index 3 Responsibilities Head of Organisational Development has overall responsibility for ensuring that agency workers receive the correct access to collective staff facilities, information on vacancies and other entitlements under this policy. Corporate HR is responsible for ensuring that any changes in legislation are updating into this procedure and communicated to the Force. Corporate HR will manage the Agency contact in conjunction with Procurement. Multi Force Shared Service Human Resources is responsible for make any necessary changes in line with this policy regarding pay and entitlements starting from the 12 week qualifying period. Line Manager will be responsible for signing the weekly timesheets. Approving request for leave and managing the performance of the individual. The Line Manager is responsible for conducting the local induction and making Agency workers aware of facilities, vacancies and entitlements. The Agency Worker is responsible for completing their time sheets on a weekly basis. Following and adhering to organisational policies and procedures. The Agency is responsible for adhering to the agreed contact between them and Cheshire Constabulary. However, it is the responsibility of all managers to ensure that this policy is implemented. Click Here to Return to Index 4 Appeals 4.1 Information for agency workers Facilities and relevant vacancies An agency worker who believes that he/she has not been provided with equal access to collective facilities or relevant vacancies may make a written request to their HR Business Partner for information about such access. Within 28 days of receiving such a request, Corporate HR will provide the agency worker in writing with the: relevant information about access to collective facilities and/or access to vacancies; and Version Not Protectively Marked 8

9 reasons for the treatment of the agency worker in relation to access to collective facilities and/or access to vacancies. Equal treatment An agency worker who believes that he/she may not have been treated equally in respect of basic employment and working conditions (after 12 weeks in the same assignment) should, in the first instance, make a written request to his/her agency for further information. The agency is required to pass on a written statement, provided by the Constabulary, to the agency worker setting out the relevant information relating to the basic working and employment conditions of the organisation s employees and workers. The agency has to do this within 28 days of receiving the request. If the agency worker has not been provided with a statement from his/her agency within 30 days of making the request, he/she can make a written request to Corporate HR for a statement setting out the relevant information relating to the basic working and employment conditions of the organisation s employees and workers. In these circumstances, Cheshire Constabulary will provide a written statement within 28 days of receiving the agency worker's request containing information relating to the relevant basic working and employment conditions of the organisation's workers. Click Here to Return to Index 5 Compliance I confirm that this document has been drafted to comply with the principles of the Human Rights Act and Equal Opportunity legislation as per force guidance. In addition, Data Protection, Freedom of Information, the National Quality of Service Commitment and Health and Safety issues have been considered. Adherence to this policy or procedure will therefore ensure compliance with all relevant legislation, internal policies and the Force values. I do/do not agree that this document is appropriate for disclosure to the public. Signed:.. (author) Date:. Version Not Protectively Marked 9

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11 Equality and Diversity Impact Assessment part 1 Potential X Does the procedure involve any of the following? (tick as appropriate) Impact If any of the boxes below are ticked the impact is high and the Equality and Diversity Impact Assessment must be reviewed annually. High - Exercise of statutory powers? - Dealing with or providing services to the public? - Recruitment & selection, transfer or redundancy processes? - Training opportunities or career development schemes? - Other processes for managing staff? (ie. discipline, pay, allocation of benefits, etc) - Any other high risks not detailed? If any of the boxes below are ticked the impact is medium and the Equality and Diversity Impact Assessment must be reviewed every 2 years. Medium - Dealing with the public, but not involving the exercise of statutory powers? - Providing services or facilities to staff? (ie. welfare, shower rooms, parking, intranet etc) - Any other medium risks not detailed? If any of the boxes below are ticked the impact is low and the Equality and Diversity Impact Assessment must be reviewed every 3 years. Low - Administration processes? - Any other low risks? Equality and Diversity Impact Assessment part 2 Consider the community as a whole and each of the protected characteristics: Age (includes all ages), Disability, Sex, Pregnancy and maternity, Race, Religion or belief, Gender reassignment and Sexual orientation, when answering the below: 1. Does this activity present an opportunity for improving equality outcomes for any of the protected characteristics? If so, how? 2. Is there public/political concern in relation to any of the protected characteristics, attached to this activity? If so, what are those concerns? This covers the rights of agency workers and it will have an impact on improving equality outcomes for all of the protected characteristics. Concerns have been raised by BME groups that some protected characteristics have been shown to be at a disadvantage. There is information about this on on 09/02/12. Version Not Protectively Marked 11

12 3. What other sources of information have been used in the development of this procedure i.e. HMIC Inspection Reports, Home Office Circulars? 4. Does the procedure relate to the use of a statutory power? If so, under what circumstance could discrimination be acceptable? 5. What data collection process exists for this procedure? How is the data monitored to ensure that the impact is not discriminatory or disproportionate? e.g. Use of community intelligence. If reviewing the procedure what are the results of the monitoring? 6. What evidence is there that actions to address any negative effects in one area may affect other areas of equality? 7. When the Race and Diversity impact assessment has included consultation, who was consulted? (Include a summary of the key points) 8. Has the procedure been altered following the consultation? (Include a summary of the key changes) 9. Has feedback been given to the groups involved in the consultation? Agency Workers Regulations No. Collection of protected characteristics data from all applicants forwarded by the contractually agreed agency. The data will be scrutinised to ensure the impact is not discriminatory or disproportionate. None. Not applicable. Not applicable. Not applicable. Date Impact Assessment completed: 12 th February 2013 Version Not Protectively Marked 12