Agency Workers Regulations
Policy statement / The Office of the Police and Crime Commissioner (OPCC) is committed to ensuring those workers engaged through a temporary work agency to work for the OPCC on a temporary basis are treated in compliance with the Agency Workers Regulations. The policy defines how the OPCC applies the Agency Workers Regulations when engaging an agency worker.
Scope / The policy applies to all agency workers engaged in approved OPCC temporary contracts.
How to use this document / This document is not part of the formal policy. Instead it provides additional information to help you as the manager in the practical day to day application of the policy.
It is expected that you will have an understanding of the Agency Workers Regulations Policy prior to using this guide.
Content
Roles and responsibilities 3
Preferred supplier contract 5
Using agency workers and alternative sources of workers 5
How to comply with first day entitlements 6
Facilities 6
Access to job vacancies 6
Rest periods and breaks 7
How to calculate the 12 week qualifying period 7
How to comply with 12 week entitlements 8
Right to pay parity 8
How to identify the market rate of pay 9
How to identify the parity pay rate 9
How to review a role 9
Right to basic employment conditions 10
How to respond to challenges raised by agency workers 10
First day entitlements 10
12 week entitlements 10
Support 11
How to guide 11
Governance 11
Roles and responsibilities
/ As the recruiting manager you are responsible for:· identifying critical posts
· identifying the most efficient way to fill a post
· reviewing on-going requirements for a position
· obtaining approval from the Chief Executive before placing an order for an agency worker
· checking the appropriate personal profile documentation (including Police vetting checks and proof of qualifications if appropriate) of agency workers before they commence work
· making agency workers aware of the OPCC’s facilities and amenities from the start of their assignment and have appropriate rest breaks
· assisting agency workers to access the OPCC’s vacancy information
· reviewing the duties and responsibilities of agency workers to check they match the role to which they are assigned and would be recruited to if they were directly employed
· ensuring timesheets and pay rates are checked on a weekly basis – approving timesheets by midnight on Mondays of the week following to ensure the agency worker is paid on time
· responding to agency workers enquiries about their first day entitlements
· liaising with Temp Force to resolve any issues raised by an agency worker
Temp Force are responsible for:
· identify when the 12 week qualifying period applies
· notifying the hiring manager through email when the 12 week qualifying period applies
· identifying and applying the correct comparator rate of pay
· responding to agency workers enquires about their 12 week entitlements
All agency workers are responsible for:
· raising first day entitlement questions with their hiring manager
· raising any other concerns or questions regarding entitlements with Temp Force
The HR person who is supporting the recruiting manager is responsible for:
· advising on policy application and best practice
· supporting resolution of any questions or queries
· providing advice on recruitment strategy
Preferred supplier contract
/ The OPCC’s preferred supplier for the provision of all temporary agency workers is Temp Force.All requests for agency workers must be made using the agreed systems and processes. If you engage temporary workers outside of these arrangements there is an increased risk that the OPCC does not meet the Regulations and this could lead to agency workers making claims against the OPCC.
Using agency workers and alternative sources of workers
/ Circumstances where it may be appropriate for you to engage an agency worker include:· short-term absence of a directly recruited employee
· short-term peaks in work volume
· whilst a replacement employee is recruited
· where there are recruitment difficulties
· requirement for specialist skills and/or experience usually for a limited period which would be difficult to source through other means
Agency workers can be a very expensive way of meeting temporary staffing needs and may not provide the same level of commitment and continuity as an employee. You should therefore consider whether other options may be more appropriate and/or cost-effective. When comparing costs you need to take into account the salary plus on-costs compared to the agency charge rate, as well as the benefits of having employees trained in-house and experience located within the team.
Alternative means of engaging temporary resources include:
· Recruitment to a fixed-term contract normally for a duration of 3 months or more. You need to take into consideration that an OPCC employee has additional contractual entitlements compared to an agency worker and may also accrue rights to redeployment and redundancy benefits when the contract comes to an end
· Engaging a casual worker normally for periods of up to 3 months. Casual workers must be used on an ad hoc basis to respond to short term variations in staffing requirements. Casual workers should not work at regular times over a sustained period as doing so may mean they accrue employment rights
· Increasing the hours of part-time employee in the team:
o short-term and ad hoc requirements are paid as additional hours and claimed by an employee
o fixed-term and more regular requirements require a temporary variation to contracted hours
· Conversion of an agency worker to a permanent or fixed-term employee of the OPCC. However redeployees are normally given priority consideration for appointment before an agency worker is offered direct employment with the OPCC. You also need to be mindful of any finders fee that a temporary work agency usually charge within the first 12 weeks of an assignment
You must obtain approval from the Chief Executive before engaging agency workers or recruiting additional resources.
How to comply with first day entitlements
/ Under the Regulations, agency workers have a number of entitlements from the first day of their first assignment with the OPCC. You are responsible for making sure these entitlements are met.Facilities
/ When inducting a new agency worker to your team, you must let them know about the workplace facilities and amenities available for them to use in the same way as an employee.The agency worker is not entitled to more favourable treatment than a comparable OPCC employee. Accordingly where there is normally no entitlement to a facility e.g. parking (or a new employee directly recruited would be subject to a waiting list for that facility) the entitlement is the same for an agency worker.
Access to job vacancies
/ If the agency worker needs help to access vacancy details, they are advised to ask you. Help may be in the form of access to a workplace computer, signposting to the Hampshire County Council jobs website or providing paper copies of job vacancies.There are some limitations upon the right of agency workers to apply and be considered for OPCC vacancies.
Vacancies advertised to redeployees:
Agency workers are not entitled to be considered for vacancies available only to redeployees. Employees with redeployment rights under the Redployment Policy receive priority consideration for appointment to OPCC positions.
Vacancies advertised internally to OPCC employees:
Agency workers are not entitled to be considered for vacancies advertised internally to OPCC employees as part of a restructure/ reorganisation.
However, if there is no internal restructuring necessitating the ring-fencing of roles, agency workers are entitled to apply and be considered for internal vacancies, alongside OPCC employees. In practice this entitlement applies where the agency worker is on assignment with the OPCC at the time of their application, regardless of the duration of that assignment. However, agency workers are not normally considered for appointment in preference to internal candidates if the period of their assignment ends before conclusion of the recruitment process.
Vacancies advertised externally
Agency workers are entitled to be considered for vacancies in the normal way when a vacancy is advertised externally.
You need to be aware that during the first 12 weeks of an agency worker’s assignment, Temp Force will usually charge the OPCC a finders fee if the OPCC appoint the agency worker as an employee. This only applies where the agency worker is appointed to same role in which they were working as an agency worker. It does not apply where the agency worker independently applies for an advertised role.
Where the fee applies, you may wish to allow the 12 week period with Temp Force to elapse before starting the employment contract. Where you have concerns regarding a potential finders fee you should speak to Temp Force directly.
Rest periods and breaks
/ Agency workers are subject to the statutory provisions of the Working Time Regulations 1998, in the same way as all workers.After completing the 12 week qualifying period, agency workers are entitled to the same rest periods and breaks as a comparable employee who is undertaking a similar role. This means that where the OPCC permits a rest period or break which is in excess of the statutory entitlement, agency workers are entitled to these.
Agency workers are not entitled to pay for any rest breaks provided, even after the 12 week qualifying period.
How to calculate the 12 week qualifying period
/ Temp Force monitor the 12 week qualifying period for agency workers. Such information should be used for budget planning purposes and you must not base the selection of an agency worker on whether or not they have completed the qualifying period. If you did base your selection on this, the OPCC may be liable for equal treatment claims brought by an agency worker.If for budget planning purposes you need to know in advance when the qualifying period will be reached, you can contact Temp Force.
Although Temp Force is responsible for monitoring the 12 week qualifying period, you may find it helpful to understand how it accrues, as this occurs in a way that is unique to the Agency Worker Regulations.
The 12 week qualifying period accrues during assignments anywhere within the OPCC in the same (or similar) role. Therefore the qualifying period may be made up of a number of separate assignments across the OPCC. The agency worker does not need to be supplied by the same temporary work agency in order for the assignment to qualify.
The qualifying period accrues in multiples of one week, regardless of how long the agency worker has actually worked during that week. A week is a 7 day period starting on the first day of an assignment.
The weeks that make up the qualifying period usually have to be worked consecutively; however certain ‘absences’ are permitted and during these the qualifying period is considered to either pause or continue. Details are contained within the Agency Workers Regulation Policy.
The qualifying period may accrue over a long period of time where the role and the hirer remain the same and any breaks are for less than 6 weeks. Therefore you should bear in mind that even though an agency worker may be new to your team, they may already have all or part of their qualifying period in place.
How to comply with 12 week entitlements
/ Under the Regulations, after completing the 12 week qualifying period agency workers have a number of entitlements to the same basic working and employment conditions as employees of the OPCC. You and Temp Force are responsible for making sure these entitlements are met.Right to pay parity
/ When an agency worker has met the 12 week qualifying period, they are entitled to be paid no less than a comparable OPCC employee. A comparable OPCC employee is one who is employed to undertake similar duties and holds similar skills or qualifications as the agency worker.Where an agency worker is paid less than a comparable OPCC employee during weeks 1-12, their hourly rate increases from the 13th week.
Where an agency worker is paid more than a comparable OPCC employee during weeks 1-12 (because of market factors such as a skills shortage) their hourly rate remains unchanged. An OPCC employee has no right to legal challenge in this circumstance and therefore there is no need to reduce the agency workers pay so that it is comparable. Remember that an OPCC employee is entitled to other terms and conditions beyond pay (e.g. pension, occupational sick pay) that are not available to the agency worker.
How to identify the market rate of pay
/ The market rate is based upon the market rate required to attract and secure an agency worker with the skills and experience necessary to undertake the role.In some circumstances, such as difficulties in attracting agency workers or a difficult to recruit to location, you may have reasonable justification to vary the market rate for an individual agency worker.
How to identify the parity pay rate
/ The parity or comparator rate of pay is equivalent to the evaluated grade for the comparable role profile. Agency workers normally start on step 1 of the grade, after completing the qualifying period (unless a higher market rate of pay has been agreed).How to review a role
/ When an agency worker remains in a role for a sustained period, you must regularly review their role. If their duties and requirements increase as they gain experience, you need to ensure that they are still assigned to the appropriate role.If the duties of the agency worker increase to the extent that they are more appropriately matched to another role, you must ensure that the agency worker is re-assigned to the new role. In circumstances where an agency worker incrementally increases their responsibilities over a period of time, this is likely to count as a single qualifying period.
Right to basic employment conditions
/ A summary of the basic employment conditions that an agency worker is entitled to with the OPCC is available in appendix 1. These relate to terms and conditions that recognise the quantity or quality of the work undertaken.The same qualifying conditions and approval processes that apply to comparable employees must be met.
Although an agency worker has no entitlement to parity with OPCC employees for expenses (e.g. travel), you have discretion to meet expenses in some circumstances, if prior approval is obtained from the Chief Executive.
Agency workers are entitled to statutory entitlements (e.g. statutory sick pay) and entitlements that arise in connection with their contract. However, you are not responsible for ensuring that these entitlements are met or for meeting the cost of these, when they arise.
How to respond to challenges raised by agency workers
First day entitlements
/ Agency workers are entitled to information about their equal treatment entitlements. If an agency worker has a query about their first day entitlements, the OPCC is responsible for providing information and enquiries should be dealt with by you with support from HR Operations or the IBC as appropriate.In most circumstances it should be possible to resolve queries without recourse to formal procedures. Where a difficulty arises in relation to the provision of information about first day entitlements, the agency worker should provide you with a written request for information. You should respond to this request as quickly as possible (and within 28 calendar days) providing all the relevant information relating to the rights of a comparable OPCC employee and the reasons for the treatment of the agency worker.
Liability for a failure to provide first day entitlements normally rest with the OPCC.
12 week entitlements
/ If an agency worker has a query about their 12 week entitlements they should raise these with Temp Force in the first instance. Temp Force should normally already hold the information needed to respond to such queries. However, in some circumstances, Temp Force may need to liaise with you to obtain further information. This includes circumstances where the agency worker believes that they have been matched to the wrong role profile for equal treatment purposes. In these circumstances you must liaise with the HR Operations to confirm whether the responsibilities and requirements of the agency worker are appropriate to the role to which they have been matched.Where there has been a failure to meet 12 week entitlements arising under the Agency Worker Regulations, the liability initially rests with Temp Force (or alternative agency). However the OPCC are liable in part (or full) to the extent to which actions by the OPCC have contributed to a breach.
Support
/ Managers:For advice regarding options to fulfil a vacancy (including use of temporary workers) contact the IBC.
For advice regarding the entitlements of agency workers contact HR Operations.
How to guide
Governance