On October 1st the Agency Workers Regulations 2010 finally came into force, which brings the EU’s Agency Workers Directive into UK law. But, what does this mean for employers, specifically for those within the education sector?
Although the legislation process for the Agency Workers Regulations began in 2008, the Government guidance was not completed until May of this year. This delay has resulted in many organisations being unsure of the implications of the Regulations and therefore ill-prepared for the changes that they bring. Due to the role that supply teachers play within educational institutions, these Regulations are directly applicable to such establishments and special guidance has been published specifically for them.
The aim of the legislation is to provide the same treatment to temporary workers as the permanent employees in the organisation receive. After completing a qualifying period of service on an assignment, such workers should expect to benefit from equal treatment as is set out in the contractual terms of permanent employees in regard to certain pay conditions, hours of work and rest, and holiday entitlements that are above the statutory minimum.
These regulations only apply to temporary workers and only to those who have been supplied to the hirer by traditional employment agencies or other third parties. This includes contract arrangements with umbrella companies.
Under these Regulations, the “hirer” of temporary staff in Independent Schools is the proprietor of the school. When agency workers move from one independent school to the next, the hirer will usually change with the move. However, in cases where a single proprietor has more than one school, this is not the case. It is very important that school leaders are aware of this as it effects the calculation of the worker’s qualifying period.
In order for an agency worker to qualify for equal treatment under the Regulations, they need to have completed 12 continuous calendar weeks, either full-time or part-time in the same or a broadly similar role with the hirer. For workers currently employed in an assignment, this period will be deemed to have begun on October 1st when the Regulations came into force.
A break of more than six weeks between assignments will break the continuity of the qualifying period. However, it is specifically stated for workers in schools, that closures for school holidays will not be accepted as such a break. During the holidays, the worker’s assignment is counted as being suspended and the qualifying period will continue from where it left off at the start of the new term.
In addition to the rights that agency workers should receive after completing the 12 week qualifying period, there are two rights to equal treatment that should be applied immediately at the start of the assignment. These are referred to as Day 1 Rights. Full liability for a failure to comply with these rights lies with the school. These rights are: the right to equal treatment in relation to access to collective facilities and amenities, such as staff canteens and childcare; and, the right to be provided with the same information regarding current vacancies as is provided to permanent staff.
If an agency worker brings a complaint of unequal treatment under the Regulations, it will usually be against both the agency and the hirer. Where an agency can show that it has made a reasonable effort to ensure equal treatment, liability will fall on the hirer. If it appears that assignments have been deliberately structured so as to avoid the obligations of the Regulations, a £5,000 is directly applicable.
For greater details of the Regulations and the effect they may have on your school, contact our specialised employment lawyers at Q&A Law for a free initial consultation.
