Agency Workers Policy

Policy Statement

This policy sets out {{org_field_name}}’s approach to the use of employment businesses and agencies to help it obtain staff, who are suitably competent and qualified to work for the service under its safe recruitment policies.

{{org_field_name}} makes every effort to recruit staff to permanent contracts wherever possible and will limit the use of “agency staff” to those situations only where it is necessary to maintain staffing levels and continuity of care and support to people receiving care, for example when staff leave or are absent for significant periods through sickness, parental leave, etc.

When using agency staff the service will comply with all the regulations in effect concerning the provision of staff through employment businesses or agencies as described.

Guidelines: Policy on the Use of Agency Workers

The use of agency workers

Agency workers (or “temps”) are those staff used by provider services to help on a short-term basis for increased workloads or to cover staff absences. The use of temporary agency workers will be in line with the [organisation’s] recruitment processes and comply with all the relevant legislation.

They will be hired from employment businesses (referred to hereafter as “employment agencies”) who will supply them on “assignments” when they will work under [the organisation’s] instructions and control. However, the temp will not be an employee of the organisation — any contractual relationship will be with the agency.

Agency workers will only be hired by [the organisation] from a list of approved agencies.

Negotiations with employment agencies

The organisation will ensure that the agency is properly briefed on the work to be done and the skills needed to do it. It will also ensure that it clarifies with the agency the nature of the relationship between the agency and the temp, ensuring that there is no possibility for the temp to claim to be an employee of the organisation.

Agreements with the agency should state that the agency worker is its employee, working under a contract of employment and that there is no employment relationship between the organisation and the temp. This avoids any future disagreements about employee status.

The organisation will carry out checks in line with the Modern Slavery and Human Trafficking Policy to ensure that it only procures its temporary staff from reputable employment agencies, particularly staff who are subject to international recruitment initiatives. It will also report to the police suspicions with evidence about any staff whom they think might be subject to exploitation by people who control them and enslavement.

Managing the temporary relationship

There are certain rules which managers should observe in managing the temp to help ensure that an employer/employee relationship does not arise. These include:

never engaging a temp for more than 23 months (as a result, they will not meet the qualifying service of 24 months to bring a claim of unfair dismissal (from 6 April 2012); in practice, the organisation will check the need for the continued use of a temp with the manager every six weeks
referring all aspects of discipline or capability (eg poor performance) or any grievance to the agency for action
ensuring that the agency deals with remuneration and benefits and that the organisation simply pays the agency a fee for its services; the organisation will not make any payment of wages or otherwise directly to the worker
leaving questions of annual leave and sickness issues to be dealt with by the agency
remembering that the organisation can at any time request an alternative agency worker from the agency
not including the temp in departmental or organisational activities which are normally reserved for employees only.

The rights and entitlements of agency workers

Managers must remember that although agency workers are classed as “workers” not employees and they have no right to claim unfair dismissal, minimum notice or a redundancy payment, they do have a number of rights when working for the organisation. These include the following.

Paid annual leave (arranged through the agency not the organisation).
Rest breaks.
Limits on working time.
To be paid at least the National Minimum Wage (and after 12 weeks with the organisation, to be paid the same as a comparable permanent member of staff).
Not to be discriminated against because of any “protected characteristic” under the Equality Act 2010.
Right of access to facilities such as the canteen from day 1 of their assignment. These may include:
a. a canteen or other similar facilities
b. a workplace crèche
c. transport services (eg local pick-up and drop-offs, transport between sites — but not company car allowances or season ticket loans)
d. toilets/shower facilities
e. staff common room
f. waiting room
g. mother and baby room
h. prayer room
i. food and drinks machines
j. car parking (this is not an exhaustive list).
However, agency workers are not entitled to better access than permanent staff, eg if an employee needs six months’ service before they can apply for crèche facilities, an agency worker must wait for the same period of time. Managers should take time to explain to temps what facilities exist and how they may have access to them.
Access to information on job vacancies: from day 1 of an assignment, all agency workers have the right to be provided with information about any relevant job vacancies that would be available to a comparable employee or worker, so if vacancies occur within their department, the manager should let the temp know. Any recruitment to a permanent position, however, will be carried out under the organisation’s recruitment policy and temps are not entitled to any more favourable treatment than other candidates.
The organisation will liaise with the agency over the transition to the same terms and benefits of employment to which the temp will be entitled after 12 weeks with the organisation. In calculating the cost of taking on a temp, the organisation should factor in any difference between the agency rate (payable for the first 12 weeks) and the usual rate for the job (payable after 12 weeks).
Note:
From 6 April 2020 employment businesses are required to issue agency workers with a “Key Information Document” (KID). The purpose of a KID is to provide pay-related headline facts to an agency worker who registers and agrees terms with an employment business after 6 April 2020.
Pregnant employees are entitled to paid time off for antenatal appointments and the employer is under a duty to provide reasonable alternative work where a pregnant agency worker could not, for a health and safety reason, fulﬁl her role. She is entitled to be paid for the duration of that assignment if no such alternative exists.
If temps believe that their rights are not being observed, they have the right to complain to their agency. The initial responsibility for ensuring equal treatment for agency workers after 12 weeks lies with the agency, but it will have a defence if it can show that has taken “reasonable steps” to obtain relevant information from the organisation about the basic working and employment conditions it applies and has acted reasonably in liability in applying these conditions. Responsibility for the breach will then lie with the organisation. Managers must co-operate in providing relevant information when requested.

Ending the assignment

This should not normally be a problem. The manager should tell the temp at the beginning of their last week that their services will not be required beyond the end of the week and should also get in touch with the agency.

Training

Any staff who are responsible for the recruiting, hiring and deployment of agency staff will receive the appropriate training in relation to their roles and responsibilities.

Responsible Person: {{org_field_registered_manager_first_name}} {{org_field_registered_manager_last_name}}

Reviewed on: {{last_update_date}}

Next Review Date: {{next_review_date}}

DW10. Agency Workers