Agency worker

This guidance was last updated on

9 August 2017

An agency worker is someone who works for the University, under university supervision and direction, but who has a contract with, and is paid by, the temporary work agency or other provider who supplied them. 

The term 'agency worker' does not include anyone who is paid direct by the University, or is self-employed, or who works in the University but under the supervision and direction of an outside contractor responsible for managing and delivering a service.  For example, staff of a company providing out-sourced catering or cleaning services are not agency workers.

They are not University employees.

Agency workers enjoy an increasing range of employment rights and any agency workers who have accrued 12 weeks’ qualifying service are entitled to the same basic terms and conditions as would apply to a staff member employed directly by the University to do the same job.

Day 1 entitlements

Collective facilities

From the first day of their assignment in the University, agency workers are entitled to equal access to collective facilities provided by the department, such as a canteen, staff common room, child care facilities, car parking, inter-site transport services, toilets and showers or any other similar facilities available to direct employees. However, if there is a waiting list, e.g. for a nursery or car parking, equal treatment is satisfied by an agency worker having an opportunity to join the same list as other comparable employees.

It is not unlawful to deny agency workers equal access to collective facilities and amenities if that can be objectively justified. Departments must, however, consult Personnel Services when considering any such exclusion.

Vacancies

From the start of their assignment, agency workers are entitled to be notified of any job vacancies in the University and to apply for posts that are advertised internally and externally. However, they do not take precedence over priority candidates who are at risk of redundancy.

After 12 weeks qualifying service

 Pay

After 12 weeks' service an agency worker’s pay rate should be the same as that of a comparable university employee, taking account of the individual's experience and qualifications.  Normally, this would be the pay for the grade of the substantive post for which they are providing temporary cover; however, if the agency worker is not fulfilling the full duties of the substantive post, a lower grade might be more appropriate.[1]

The agency worker's pay should include any relevant university allowances and is subject to the same cost-of-living increases as apply to the salaries of direct employee. Agency workers should be included in any merit pay scheme (providing they meet the general criteria for the scheme), but are not required to be fully integrated into performance appraisal or Personal Development Reviews. 

Agency worker pay does not include elements such as pension, occupational (contractual) sick pay, parental pay, contractual notice pay, or redundancy pay. 


[1] Please note that the University is an accredited Living Wage employer, and pay rates should meet the Living Wage Foundation standards. For further information, please see here

Working time and rest breaks

After the qualifying period, agency workers are entitled to equal treatment with regard to working time, e.g. an agency worker doing a job comparable to a support staff employee would work 36.5 hours each week and be eligible for overtime at standard rates. They are also entitled to the same rest and lunch breaks. The working hours of academic-related staff are normally those which are reasonably required to carry out the duties of the post, and are pro-rated to 37.5 each week.

Holiday entitlement

The University currently grants casual/temporary staff the statutory holiday entitlement of 28 days. Under the Regulations, agency workers with 12 weeks' qualifying service will be entitled to the same contractual holidays as direct employees, i.e. 38 days leave per annum (pro rata), including public holidays and locally-agreed fixed closure days. However, it is permissible under the Regulations to replace the contractual element of the holiday allowance (i.e. the additional 10 days) with payment in lieu.

Protection during pregnancy

Once they have completed the 12 weeks' qualifying service, pregnant agency workers have the right to reasonable paid time off to attend ante-natal appointments.  Departments will need to conduct a health and safety risk assessment and make any reasonable adjustments. If the agency worker cannot complete the duties of the original assignment for health and safety reasons, it is the agency’s responsibility to find them alternative work, at the same or higher pay. If alternative work cannot be found, the pregnant woman has the right to be paid by the agency for the remaining expected duration of the original assignment.

Calculating the 12 week qualifying period

Care needs to be taken in calculating when the 12-week qualifying service has been served.  The agency worker is deemed to have qualified once:

  • they have spent 12 successive weeks in the same or an equivalent job, regardless of how many hours or days they actually work;
  • they have done a series of short stints in different university departments which together add up to 12 weeks; or
  • they have accrued a total of 12 weeks in the University, even if there has been a break during or between assignments.  The period of the break does not count towards service, but the work either side of the break does.  Continuity is only broken if the break is longer than 6 weeks or if the worker starts a substantively different assignment. A break of less than 6 weeks, or sick leave, or jury service of up to 28 weeks, or time off for annual leave, or industrial action only interrupts the accrual of service.  Pregnancy or maternity-related absence is deemed not to interrupt accrual.

When taking on an agency worker, it is important that departments ask the agency if the worker has already accrued service with the University by working in any other university department during the previous six weeks.  An agency worker who has completed the qualifying period remains qualified for equal treatment until there is a break in continuity of sufficient length.

Careful consideration also needs to be given to determining when an agency worker has taken on a substantively new role.  Roles in different departments carrying out tasks at a similar grade are unlikely to be viewed as ‘substantively different’. To count as different, a new role would need to involve new responsibilities, skills or equipment and/or a different line manager, location or working hours.

Reporting

From 1 October 2011 departments are asked to keep and retain records of agency workers as new starters and to record any changes to their pay throughout the assignment. Departments should also record the agency worker as a leaver when they complete their assignment.

In order that the University may have a complete record of how long an agency worker has worked in any of its departments, departments that are live on Core are asked to enter the agency workers details retrospectively into the HR system. Full details on how to set up an agency worker in Core are provided in the Setting up a non-employee QRG (465kb). Those departments that are not live on Core should send the following forms to the Data Entry Team, BSP, 23-38 Hythe Bridge Street. The appropriate forms are Agency worker - new starter form (114kb), Agency worker - leaver form (108kb) and Agency worker - pay amendment form (105kb).

Standard reports for departments to run from Core on agency workers who are approaching 12 weeks' service are under development and will be available shortly.


Guidance

An easy reference guide is available on the University's basic entitlements for agency workers, for the information of departments and agencies [see Further Information at top of page]