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Understanding agency worker rights

on Tuesday, 12 December 2023.

We have seen an increase in claims being brought by agency staff where their legal entitlements have not been met. It is therefore crucial that schools understand agency workers' rights and comply with their legal obligations to avoid any similar claims.

Agency worker rights

Under the Agency Workers Regulations 2010, agency workers have certain rights whilst engaged on any assignments with a school/trust (or hirer in general). The critical point to be aware of is that agency staff should not be treated less favourably than comparable permanent employees.  

The rights of agency workers broadly fall into two categories. Day one rights which (as the name suggests) will apply from the first day of their assignment, and week-12 rights which are only triggered once an agency worker has undertaken the same role (whether on one or more assignments) with the same hirer for 12 continuous calendar weeks.

There are certain exceptions which may allow the 12-week period to continue to run even where there has been a break, or where an agency worker has moved between schools within a Trust. Seek further advice if you have any questions in this area.  

A common example we see in the context of schools is the impact of the school holidays. Keep in mind that school holidays will not break the continuous 12-week period, but instead, will be treated as simply pausing the clock. Holiday periods, therefore, don't count towards the 12 weeks, but weeks worked before and after the holiday break will be deemed as continuous weeks.

Day one rights

As the hirer schools/trusts, you must ensure that all your agency workers can access any collective facilities and amenities from day one. This is likely to include canteen facilities, staff room, car parking, childcare etc. Agency workers must also have access to information about the school/trust's job vacancies. Again, this applies from the first day of their assignment.  

These obligations fall entirely on the school or the trust as the hirer, and accordingly, any liability for failure to comply with this requirement would result in liability on the school or trust. The agency would not bear any responsibility in the event of breach of day one rights.

Week-12 rights

Once an agency worker has undertaken the same role with the same hirer for 12 continuous calendar weeks (remembering that school holidays will not break this period), they will qualify for additional rights. On completion of 12 weeks, agency workers are entitled to receive the same basic working and employment conditions as workers recruited directly by the school/trust. This includes terms and conditions relating to pay, working time, rest periods and holiday.  

Schools/trusts have sole legal responsibility for breaches of day one rights. Liability for breach of week-12 rights, however, can fall on both the hirer (the school/trust) and the agency, to the extent that they are responsible. While there is a defence available to the agency (known as a 'reasonable steps' defence), there is no defence available to the hirer to reduce or avoid liability.

It is these week-12 rights where we most commonly see clients run into issues. The school/trust typically pays the agency a fee with no knowledge of what proportion of the fee is paid to the agency worker. Notwithstanding this, the school/trust still bears responsibility for failure to comply with the week-12 rights and therefore, it is critical that schools/trusts take steps to protect their position when engaging agency workers.

Protecting your position as a hirer

In order to avoid any potential issues and protect your position as a hirer when it comes to agency workers suggest the following:

  • Know your obligations in relation to agency workers
  • Ensure that agency staff have access to the same facilities, amenities and job information as comparable permanent staff from day one of their assignment
  • Read the terms in place with the agency carefully and pay attention to any obligations on the school/trust to provide certain information to the agency. For example, you may be required to let the agency know what pay and conditions the agency worker would have been entitled to had they been employed directly, and the pay and benefits structure.
  • Ensure that you comply with these obligations
  • Diarise the 12 week date for any of your agency staff and speak to the agency to confirm that at the 12 week point these staff need to be paid the same as comparable employees and receive the same terms and conditions.

Remember, after the 12 week date, the agency worker should receive the same pay as if they had been employed directly by your School, as well as any agency fee will on top of this.

For more information regarding agency workers' rights, please contact Sian Knight-James in our Employment team on 07468 698 971, or complete the form below.

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