This series of FAQs was developed to assist employers during the implementation of the new regulations.
The directive gives agency workers entitlement to equal treatment with respect to basic employment and working conditions if and when they complete a qualifying period of 12 weeks an a particular job. In other words, their basic terms and conditions of employment must be no less favourable than the terms they would have been entitled to had they been recruited directly by the NHS.
The regulations apply to individuals who have a contract with a temporary work agency and who are supplied by that agency to work temporarily under the supervision and direction of a hirer- the client.
A temporary work agency is an organisation that is in the business of supplying individuals to work temporarily for hirers, whether for profit or not and including both public and private sector bodies involved in the supply of temporary agency workers.
The key point here is that the supervision and direction of the worker is undertaken by the hirer.
9.Where we have a vacancy that is restricted to internal applicants’ only (existing employees) do we have to include agency workers within the definition of internal applicant?
Yes, all advertised vacancies with the hirer organisation must be easily accessible to their qualifying agency workers.
This obligation for the hirer relates only to the information about vacancies and does not significantly constrain employers’ freedom regarding how they treat applications, qualification, experience requirements etc.
This right will not apply in the context of a genuine ‘headcount freeze’ where organisational restructuring is in place to avoid redundancies. The right extends only to vacancies in this context.
After 12 weeks in the same role, these additional new equal treatment entitlements relate to ‘relevant terms and conditions’, namely pay and other basic working conditions and will only come into effect after an agency worker completes a 12 week qualifying period with the same hirer, in the same role:
- key aspects of pay related to work undertaken on assignment
- duration of working time
- night work
- rest periods
- rest breaks
- ante-natal appointments.
The right to equal treatment will not apply until an agency worker has worked in the same role for a hirer for 12 continuous weeks. Importantly, any change of agency during the 12 week period will not affect qualification.
Pregnant agency workers will now be allowed to take paid time off for ante-natal appointments during any assignment.
10. What does ‘the same role’ mean?
If a change in position is to require an agency worker to re-qualify for equal treatment, the whole or main part of the new role must be substantively different from the previous role. A further requirement is that the agency must have notified the worker in writing of the type of work they will be required to carry out in the new role.
11. How many working hours per week are required for qualification?
There is no minimum amount of work that needs to be completed in order for a week to count as one of the 12 for qualification purposes.
12. Is the 12 week qualifying period continuous?
Any break between assignments of six weeks or less, in the same role, shall not break ‘continuity’ for qualification purposes.
An agency worker might work for more than one hirer during a week (or even during a day). They may therefore have more than one qualifying period running at any one time.
An agency worker might work for a hirer for six weeks with one agency and is placed with the same hirer three weeks later by another for a further eight weeks. As there has not been a six week break between the assignments, the agency worker will be entitled to equal treatment after six weeks on the second assignment.
13. Are NHS trusts required to offer statutory or other mandatory training to agency workers who have been employed by the trust for 12 weeks or more?
The advice under this question was provided by Capsticks Solicitors LLP in January 2014.
Week 12 rights
Regulation 5 of the Agency Work Regulations (AWR) sets out that agency workers are entitled to the same “basic working and employment conditions” to which they would have been entitled for doing the same job had they been recruited by the hirer other than via an agency. This entitlement does not arise until the agency worker has undertaken the same role, whether on one or more assignments, for a period of 12 continuous calendar weeks.
Basic working and employment conditions include pay, working time, night work, rest periods and rest breaks, and annual leave. They would not include such matters as training, however.
Day one rights
In addition to the week 12 rights, under regulations 12 and 13 of the AWR, agency workers are entitled to access the collective facilities of the hirer (in this case the trust) and to have access to information about its job vacancies. These entitlements are day one rights ie they apply from the first day of the agency worker’s assignment and the 12 week qualifying period is not relevant.
Collective facilities and amenities are stated in the AWR to include canteen or similar facilities, childcare facilities and transport facilities. The Department for Business, Innovation and Skills (BIS) Guidance to the AWR suggests that a distinction can be drawn between the hirer’s on-site facilities, (such as a common room) and off-site facilities, such as discounted gym membership. Although access to training is not specifically included in the list of “collective amenities”, the list is expressly stated to be non-exhaustive and training could therefore fall within its scope. Further, it is arguable that, in order to be compatible with Article 6.5 of the Temporary Workers Directive, the EU legislation from which the AWR are derived, and which are directly effective against an NHS employer, the AWR should cover access to training.
If access to training does fall within the scope of the AWR, it is possible that, in accordance with the BIS Guidance, only on-site training would be deemed to be in scope, and any off site training to which the hirer may send its staff would be excluded. The distinction in the BIS Guidance is not legally binding, however, and could be challenged – the Trade Union Congress (TUC) has already expressed its concern at the distinction. However, it is difficult to see how allowing workers time off to attend external training courses provided by a third party could amount to “collective facilities and amenities” and is unlikely therefore to be in scope of the AWR.
The issue of whether or not agency workers are entitled to access to training issue has not as yet come before the courts. As a result, there is as yet nothing binding in UK law which states that agency workers must be offered access to training, whether statutory, mandatory or otherwise. Capsticks Solicitors LLP would advise, however, that were this issue to be considered in a UK tribunal, access to on-site training, whether statutory, mandatory or otherwise, would be likely to be held to amount to “collective facilities and amenities” under Regulation 12 of the AWR. Such access would therefore be required to be provided to all agency workers from the first day of their assignment, and 12 week qualifying period would not apply.
In relation to off-site training, Capsticks Solicitors LLP believes that this is not covered by the AWR and would not therefore amount to unlawful less favourable treatment. Trusts could therefore require agency workers to hold all necessary qualifications/training prior to commencing an assignment. In relation to any mandatory or statutory training that falls due during the course of an assignment, Capsticks would argue that a trust can require the agency worker to make their own arrangements for training, at their own expense. However, this could be assessed on a case by case basis as there may be scenarios in which of course it is more straightforward to allow the agency worker access to the same training as permanent workers. Agency workers could possibly argue that, if they are not given time off to attend training, this could amount to less favourable treatment with respect to annual leave, and therefore in breach of a week 12 right. Capsticks would therefore advise that, to minimise the risk of any such claims, agency workers are not required to undertake any statutory or mandatory training that they must do during an assignment in their own time, if comparable permanent workers are allowed to do so during their normal working time.
Less favourable treatment of an agency worker can be justified on objective grounds if the hirer is seeking to achieve a genuine business objective and the treatment is a necessary and appropriate way of achieving that objective. Cost is a factor that may be taken into account, although cost alone is unlikely to justify any less favourable treatment. However, in certain cases there may be practical or organisational arrangements that may give rise to a good reason for treating the agency worker less favourably. Trusts should approach this issue on a case by case basis, carefully document the reasons for any less favourable treatment, and consider whether there is any practical alternative to the less favourable treatment before its implementation.