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Durham University

Human Resources & Organisational Development

Agency Workers Regulations

Effective from 1st October 2011

Background

In October 2011, new legislation came into force to give agency workers in the UK the same rights and benefits enjoyed by those directly employed by a hiring organisation.

The purpose of the regulations is to provide Agency Workers with equal treatment.  The Agency Workers Regulations (AWR) states that Agency Workers should receive basic terms and conditions that are equivalent to a person recruited directly by the hiring organisation to do the same job.

Who is considered an Agency Worker?

An Agency Worker is defined under the AWR as:

  • An individual supplied by an agency to work temporarily for the hirer, this includes consultants;
  • An individual supplied via an intermediary (so called 'umbrella ' companies)

The genuinely self-employed and limited company contractors will not be covered by the AWR.

Entitlements

Agency workers will only be entitled to receive the same basic terms and conditions as those directly employed by the University for example, pay, annual leave, facilities and amenities and paid time off for antenatal care etc.

The table below provides a guide as to what basic terms and conditions fall within the scope of the AWR.

Nature of pay/benefit

Applicable to Agency Workers?

Basic Salary

Yes

University holiday entitlement in excess of statutory entitlements (includes customary days)

Yes

Overtime payments

Yes

Unsociable hours payments (e.g. shift allowances)

Yes

University Sick pay in excess of statutory

No

Notice/Redundancy payment/Redeployment

No

Occupational pension contributions or schemes

No

University maternity/paternity/adoption pay in excess of statutory entitlement

No

Qualification to the entitlement

To make a claim for equal treatment under AWR, the agency worker must have worked in the same type role with the University for 12 calendar weeks during one or more assignments with any agency; therefore an Agency Worker can accrue 12 weeks qualifying service by being supplied by several different agencies. 

This qualifying period can be paused due to sickness absence, planned closure, industrial action and annual leave; however, it is not paused for events such as maternity, paternity or adoption leave.                               

Part-time Agency Workers

Service accrues in calendar weeks, not by hours worked.  Therefore, in an extreme case, if an Agency Worker were to be placed into the same role with the University for just one day in each week, then after 12 consecutive weeks they would qualify for 'equal treatment'. This therefore increases the need for us to keep accurate records as Agency Worker assignments.

Break in service

Continuity will be broken when:

  • there is a break of six weeks, or more, during or between assignments in the same role; or
  • upon commencement of a new and substantively different role.

In either case the 12 week qualifying period will be reset.

However, there are a number of circumstances where absence will only pause the qualifying period.  One of these is when the Agency Worker is absent due to certified sickness absence. In this case, the qualifying period resumes upon their return to work, provided that this is within 28 weeks.

As well as absent due to sickness or injury, the following would be reasons for a pause in the qualifying period:

  • A requirement to attend public duties, such as jury service (provided they return to work within 28weeks)
  • A planned workplace closure, such as a Christmas shutdown or vacations breaks for those working term time only.
  • Industrial Action
  • Annual Leave

Pregnancy related absence

In the case of pregnancy related absence, maternity leave, adoption leave and paternity leave, the qualifying period is not paused.  In such instances, the qualifying period is deemed to continue for the original intended duration of the assignment, or the likely duration (whichever is longer)

Rights that are not subject to the 12 weeks qualifying period

The following rights are effective from the first day of assignment.

Pregnant Agency Workers have a right to time paid off for ante-natal appointments.

Agency workers have a right to be informed of any vacancy post within the organisation.  However, if we are carrying out an internal re-organisation, which may involve a ring-fencing process, then it is acceptable to make clear that vacancies arising out of a restructure are only available to direct employees.  N.B.  An £800 fee will be charged from the agency should a member of there staff apply and be offered a position within the University within a period of 4 weeks of starting an assignment.  HR will cover this cost in all cases except when an Agency Worker is made permanent in the department in which they were originally assigned on a temporary basis.

Agency Workers have the same right to amenities and facilities as comparable employees.  This would include on-site restaurants, child care facilities, car parking and transport services.  Access can only be refused on objective grounds and this may include long waiting lists making it impractical to offer access to Agency Workers (The University Nursery for example).

Liability of Agency Workers

Liability for ensuring 'equal treatment' for the Agency Worker, after completion of the 12-week qualifying period, lies with the agency.

However, where the agency has taken reasonable steps to obtain relevant information from the University, and acted reasonable in setting appropriate conditions for the Agency Worker, the liability for breach will lie with the University.

The University will have sole liability in relation to informing agency Workers of vacant posts and providing access to amenities and facilities.

Disclosing headcount information

Details of Agency Workers must now be provided during a collective redundancy exercise, TUPE exercise and other statutory consultations.

More specifically, when disclosing information to worker representatives for the purposes of consultation we will be required to state:

  • The number of Agency Workers being used;
  • The areas of the University in which they are used;
  • The type of work they undertake.

The AWR also requires the University to disclose information regarding Agency Workers to recognised unions.

To ensure that we are in a position to report of the information required, monthly reports are sent from the various agencies who supply temporary staff.

The University's Appointed Agencies

The Recruitment Team and Procurement Services have been working closely with the University's appointed agencies to ensure that they are ready to manage the changes brought about by the AWR come 1st October 2011.  In preparation for the changes the University has already agreed to pay its Agency Workers the comparable rate of pay with current staff but this does not currently apply to annual leave entitlement, and therefore departments should be aware of the additional cost that this will bring.

For any queries please contact Lauren Edwards, Recruitment Manager ext 46518.