Key messages for employers
- BIS (formerly BERR) sought responses to the second stage of consultation by 11 December; NHS Employers provided a collective employers’ response (see below) on behalf of NHS employing organisations as hirers of agency workers.
- The Agency Workers Regulations 2010 were laid before Parliament on 21 January. The Government's response to the consultation is available on the BIS website.
- Key issues for employers including the NHS will be the meaning of 'equal' treatment (pay, holidays, access to training or collective facilities etc) and calculation of the 12 week qualifying period. Clear guidance and definitions will be provided
- The legislation will begin on 1 October 2011 to allow full preparation time for hirers and agencies.
Changes to proposals contained in the January 2010 government response
The draft legislation laid before parliament contain few major changes from the second stage consultation document:
- Implementation date confirmed at 1 October 2011
- Equal treatment after 12 weeks in a given job remains the key feature
- The regulations provide clarification on establishing equal treatment
- Bonus payments are clarified: payable where they are directly attributable to the quality or quantity of work done by an agency worker
- Additional protection for new mothers taking time off following childbirth
- Final regulations now contain additional anti-avoidance provisions
- Proposals for a 'reasonableness test' for 'temp to perm fees' have been omitted but the issue will be kept under review in the light of evidence
Background
Under the terms of the European Union's 2008 Agency Workers Directive, which all member states must implement by December 2011, temporary workers would be treated equally, from day one, with those staff on permanent contracts.
However, in the UK, an agreement reached between employers and the trade unions in May 2008 will apply, which means that agency workers will gain equal rights after 12 weeks' employment.
Consultations
On 15 October 2009, the Department of Business Innovation and Skills (BIS) launched the second stage consultation on the UK implementation of the Agency Workers Directive by publishing revised proposals and proposed legislative requirements. It also published the summary of responses to the first consultation in May 2009. Both of these documents can be found on the BIS website.
NHS Employers had previously consulted with its members on the earlier proposals from BIS in May/June 2009 and liaised with other organisations working in the public sector, to provide a first stage collective NHS response.
Second stage of the consultation
This second stage of the consultation closed on 11 December. NHS Employers provided a summary of the proposals from BIS together with a commentary on the possible impact within the NHS. This summary can be accessed here.
Most of the original proposals are broadly retained. One main change for employers is that some of the definitions such as "pay", " equal treatment" and "access to collective facilities" have now been clarified.
Another key change is that the proposed minimum break period between assignments has been extended from four to six weeks, to provide greater protection for employers and avoid confusion with holiday leave taken. The government's intention is to lay regulations before parliament this year, for enactment into UK law with effect from 1 October 2011
NHS Employers response
See our response to BIS, sent on 11 December 2009, and based on discussions with colleagues in the NHSE Flexible Workforce Strategic Forum and elsewhere in the service.
History of the Directive - NHS impact
The main purpose of the Directive as outlined in the original BIS paper is to protect temporary agency workers through the application of the principle of 'equal treatment', accrued after an initial 12 week qualifying period:
- Access to the same pay; holidays; working time; overtime; breaks and rest periods as comparable to permanent workers
- Equal access to collective facilities (eg canteen, childcare facilities, transport services)
- Access to information about permanent employment opportunities and access to training.
Of the estimated 1.3 million temporary agency workers across UK industry, the healthcare sector engages around 10 per cent of the total, and, while this has reduced in recent years, agency spend traditionally accounts for a considerable proportion of the overall NHS wage bill.
The NHS has long made use of agency staff or flexible contracts to cover some of its work, particularly at times of peak service pressure. NHS Employers, through its Flexible Workforce Strategic Forum, supports the continuing development of a flexible workforce as part of overall workforce planning which is responsive to service demands. What is important is that the NHS secures the quality staff it needs in the right numbers to provide safe patient care at appropriate cost.
The implications of the changes outlined in the Directive will undoubtedly have an impact on the NHS, and - perhaps unlike some other industry sectors - the spread of temporary agency staff in the NHS historically covers skilled and non-skilled areas alike.
Under the proposals, agency workers are defined as those engaged to work though a temporary work agency (known as a “recruitment business”) which pays them direct, deducting tax and NI contributions before they receive a salary. The contract is with the agency although they will work under the day-to-day supervision of a manager/supervisor within the hiring organisation to which they are assigned.
The Directive will not cover occupational social security schemes, including sick pay, pensions or financial participation schemes.
More information
For further information on the AWD, please contact Barbara Levy at NHS Employers, using the mailbox flexibleworkforce@nhsemployers.org