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Guidance document for use of Agency Workers – Agency Workers Regulations 2010

Purpose

The introduction of the Agency Workers Regulations (AWR) 2010, introduced in October 2011, has increased the rights of Agency Workers following a qualifying period and this document provides guidance on the management of this group of workers.

Who is eligible under the Agency Workers Regulations?

There is a wide definition of agency workers under the Agency Workers Regulations 2010. The definition extends beyond workers engaged by an agency under a contract for services to include other contractors and workers engaged on an employed basis at the University.

Agency workers will include individuals who work through a "temporary work agency" (as defined in reg.4 of the Regulations) temporarily for the University under our supervision and direction. This will exclude the genuinely self employed and most individuals working through their own service company. Schools and Directorates should also be aware that personal service company workers may come within the scope of the Regulations (unless they are genuinely self employed), as may those supplied through managed service arrangements where supervision and direction are unclear.

Where a worker is not supervised or directed by the School/Directorate or a line manager who is employed by or works for the University, the Regulations are unlikely to apply.

Workers not covered by the Regulations

The following are not covered by the regulations:

  • Workers who are ‘introduced’ to the University by an ‘Employment Agency’ for a directly employed role and who are then issued with a contract of employment.
  • Those who are in a "profession or business undertaking carried out by the individual" where the University is a client or customer of the individual (i.e. a genuine business to business relationship). It is possible for someone in a profession or in a business to be an agency worker if there is no such client or customer relationship and simply putting earnings through a limited company would not in itself put individuals beyond the possible scope of the Regulations.
  • Managed Service Contracts where the managed service contractor has responsibility for managing and delivering the catering or cleaning service and employs rather than supplies the workers. The Managed Service Contractor must be genuinely engaged in supervising and directing its workers on site on a day to day basis and must determine how and when the work is done. If it is the University that determines how the work is done, then it is more likely that the workers will be covered by the Regulations.

Rights of Agency Workers

Agency workers receive a range of entitlements some of which will apply from the first day of their assignment with the School/Directorate and others which apply following completion of a 12 week qualifying period. The qualifying period remains as 12 weeks regardless of whether a worker is engaged on a full or part time basis.

The regulations have incorporated anti-avoidance provisions to prevent employers avoiding the qualifying period by rotating assignments or incorporating short term breaks. Specific guidance is included in the accompanying Frequently Asked Questions document in relation to this.

Entitlements issued from day one

Agency Workers get certain rights from day one of any given assignment, including access to:

    • Canteens
    • Childcare
    • Job Vacancies

It is the school/directorate’s responsibility to ensure that the Agency Worker has either received this information from their Agency or to give it themselves on or before their first day. Day one Information Sheet should be provided to the Agency Worker.

Entitlements issued following the qualifying period

Agency Workers are entitled to the same basic terms and conditions of employment to which they would have been entitled had they been directly recruited by the University.

Post-qualification (12 weeks qualifying period) Included Rights and Benefits:

    • Same basic working and employment conditions including:
      • Pay, including basic pay, overtime, shift/unsocial payments
      • Annual leave – any contractual holiday entitlement which may be given as leave or paid in lieu as part of hourly/daily rate.
    • Paid time off for ante natal care and classes (Agency will administrate).
    • Right to suitable work if pregnant, or, if suitable work is unavailable, paid time off for remainder of assignment (Agency will administrate).
    • Vouchers – for example, free eye tests that apply to all Cardiff University staff.

Post-qualification Excluded Rights and Benefits

There are certain benefits that the Agency Worker is not entitled to at any stage of the assignment:

    • Cardiff University sick pay
    • Joining the Cardiff University or USS pension schemes
    • Contractual maternity, paternity or adoption pay.
    • Redundancy pay
    • Payment for time off made in accordance with certain statutory rights
    • Entitlement to non-cash rewards e.g. medical insurance
    • Benefits related to salary sacrifice schemes
    • Discretionary payments

Roles and responsibilities

The Schools/Directorates are responsible for:

  • Providing the Agency with full and accurate information on the skills and qualifications of the Agency Worker required.( e.g. a job description where available)
  • Commencing a recruitment process in conjunction with HR if the engagement is expected to last in excess of 12 weeks.
  • Ensuring that the Agency Worker has received the Day One information sheet from the Agency, or supplying it yourself.
  • Ensuring that the Agency Worker receives a comprehensive induction on their first day.
  • Ensuring that the Agency Worker is treated in line with the University’s policies and procedure as applicable.
  • Liaising with the Agency on all issues except direct day-to-day management of the Agency Worker, including all management issues such as timekeeping and performance concerns.
  • In conjunction with HR, informing the Agency, in writing, of the Terms and Conditions which should apply to the Agency Worker should they exceed the 12 week qualifying period.
  • Informing the Purchasing division should an Agency Worker be engaged through an agency other than Hays, Brook Street, Acorn, Office Angels, and Reed.
  • Ensuring compliance with the Agency Worker Regulations by following these guidelines and by contacting HR in the event of any queries.

The Agency is responsible for:

  • Sourcing suitable candidates and ensuring that background checks are satisfactory.
  • Checking that candidates have not been engaged by CU in the past 6 weeks, nor been dismissed by CU at any stage, and ensuring that a disclaimer to this effect is signed by the Agency Worker.
  • Ensuring that Agency Worker’s are given the CU ‘Day One’ information sheet.
  • Managing any performance issues, including replacing Agency Workers should they prove unsatisfactory.
  • Advise Schools/Directorates when workers are about to reach the 12 week Qualifying period.
  • Providing monthly Management Information to Cardiff University Purchasing for monitoring and information purposes.
  • Implementing changes to pay and holiday entitlement after qualifying period.
  • Dealing with any issues raised by the Agency Worker under the 12 week rights.

Schedule for Revision

This guidance will be reviewed on an annual basis, whenever legislation relating to this area is amended and if relevant Case Law indicates that modification is required.

Sources of Further Guidance

Please refer to Guidance on the use of Agency Workers.

You can also refer to the guidance document produced by the Department for Business Innovation & Skills, available from:

www.bis.gov.uk/assets/biscore/employment-matters/docs/a/11-949-agency-workers-regulations-guidance

Also see