Transcript Agency Worker Slides - Schools

Agency Workers
Regulations 2010
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Introduction
• 1.3 million agency workers in UK
• Agency Workers Directive 2008/104/EC
• Due to come into force in UK on 1 October
2011
• Guidance issued by BIS
• Guidance issued by DfE
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Overview of the Regulations
• What will they get?:
– same basic working and employment
conditions,
– equal access to facilities and permanent
employment,
– improved access to some facilities
between assignments
• Non-compliance Penalties
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Part 1: Definitions
• Agency Worker
• Temporary Work Agency
• Hirer
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“Agency Worker”
• “An individual:
–supplied by a temporary work agency
to work temporarily for and under the
supervision and direction of a hirer;
and
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“Agency Worker” (continued)
- has a contract with the temporary
work agency which is:
(i) a contract of employment with the
agency; or
(ii) any other contract to perform work
and services personally for the agency
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“Temporary Work Agency”
• “A person engaged in the economic activity, public or
private, whether or not operating for profit, and
whether or not carrying on such activity in conjunction
with others, of:
(a) supplying individuals to work temporarily for
and under the supervision and direction of hirers;
or
(b) paying for, or receiving or forwarding payment
for, the services of individuals who are supplied to
work temporarily for and under the supervision
and direction of hirers."
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“Hirer” (1)
• “A person engaged in economic activity,
public or private, whether or not
operating for profit, to whom individuals
are supplied, to work temporarily for and
under the supervision and direction of
that person”
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“Hirer” (2)
• Maintained Schools
• Academies
• Independent Schools
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Part 2: Rights
• Same basic working and
employment conditions as if they
had been recruited directly into the
same job as a permanent
employee
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Qualifying Period
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12 continuous calendar weeks
Includes any part of week
Same role with same hirer
‘substantially different’ role
– change to duties
– not simply switching roles in same context
– further guidance
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Entitlement to rights
• Once met 12 weeks qualification then
entitled to rights from then on
• Runs as long as worker in same role
• Includes any return to role within permitted
time (e.g. allowed breaks)
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Breaks (1)
• 6 weeks break or more
= stops time running
• less than 6 weeks break
= time starts from last week
clocked
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Breaks (2)
• Not counted as ‘breaking’ time:
– sickness absence up to 28 weeks
– statutory or contractual time off (annual leave)
– jury service up to 28 weeks
– strikes/lock down
– temporary cessation of work (e.g. summer
holidays)
• Statutory or contractual reasons (maternity etc)
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Assignment structure
• Anti avoidance provision
• If worker would have qualified but for:
– use of different agencies or
– use of different roles AND
• Intention to avoid regulations
• Award of up to £5,000
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Relevant Terms and Conditions
• basic pay,
• contractual payments
• duration of working time,
• night work
• rest periods/ breaks and
• annual leave
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Pay
“any sums payable to a worker of the hirer
in connection with the worker's
employment, including any fee, bonus,
commission, holiday pay or other
emolument referable to the employment,
whether payable under contract or
otherwise but excluding any payments or
rewards”
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What is included in Pay?
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holiday pay
paid bank holidays
overtime rates
shift allowances
unsocial hours premium
bonuses related to performance
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Not included in Pay
• Sick pay
• Pension
• Maternity, paternity, adoption leave
pay
• redundancy pay
• share/option schemes
• advances/loans/expenses
• guarantee payments
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Teacher’s Pay
• Nature of role not qualifications of agency
worker
• “Specified Work”
• School Teachers’ Pay and Conditions
Document
• Holiday Pay
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Comparator
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Identify real comparator
Employees
Current employees only
Comparator must be:
– doing broadly similar work
– in same organisation or
– different organisation but satisfies other
requirements
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Rights of access:
Collective facilities and amenities
• Includes:
– canteen, child care facilities, transport
services
• No less favourably than comparable worker
• During duration of assignment (from day 1)
• Hirer responsible for any breach
• Further guidance to be issued
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Right to access to employment
• Right to be informed of relevant vacant
posts
• Objective to find permanent
employment with hirer
• During duration of assignment (from day
1)
• General announcements/notices
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Part 3: Liability, Protections and
Remedies
• Agency liable for breaches:
– of providing same basic rights
– unless taken “reasonable steps”
• Hirer liable for breaches:
– of access to facilities
– of providing vacancies information
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Unfair dismissal
• If employee:
– automatic unfair dismissal if connected to
exercising rights
• All have right not to be subjected to detriment
• Claim can be brought against hirer or agency
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Claims to Tribunal
• Time limit
– 3 months from breach
• Extension of time
• Remedies
– declaration
– compensation
– recommendation
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Compensation
• 2 weeks+ pay
• Contributory fault reduction
• Split between respondents
• Increase if recommendations ignored
• £5,000 fine for avoidance
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Practical Points (1)
• Do you know the make-up of your temporary
workforce?
• Do you tend to use agency workers for 12 weeks or
more?
• Do you currently allow agency workers to use on-site
facilities?
• Do you currently advertise all vacancies to your
agency workers?
• Have you considered the cost implications of the
need to equalise basic pay, working hours, break
times etc?
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Practical Points (2)
• No need to equalise redundancy pay or sick
pay
• no way of knowing if agency worker will
complete 12 week qualification period:
- provide all rights from Day 1?
- system in place to record 12 weeks?
- convert all agency staff to employees?
• what information should you provide the
agency with?
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