Agency workers rights.

amybroom

Hi I was wondering if anybody is able to help me. I have worked at the same place now for four months through an agency. I was having problems with one agency so I changed to another. I took no time off I simply transferred to a different agency. I am directly supervised by the supervisor at the place where I work. What I would like to know is if my continuos service still counts towards my agency workers rights after 12 weeks of working at the same employer. I know that I am entitled to equal pay to someone employed directly by the company after 12 weeks but I cannot see any information anywhere about what happens if I change agency. My new agency were fully aware that I have worked there and length of time. I think they should have to put my pay up straight away but would like some advise before I speak to them?

sangie595

There is no continuous employment across agencies - you started the clock again when you changed agencies. The rights are attached to the specific agency contract - nothing to do with the total amount of time that you may have been contracted by agencies to a single employer.

amybroom

Hi I just meant that I have worked at the same hospital doing the same job for the whole time. So my work has been continuos because I have worked only there and nowhere else. I looked on the direct gov website and it said this for rights after 12 weeks in the sane work placement with same employer.

Rights after 12 weeks
After 12 weeks in the job you qualify for the same rights as someone employed directly. This is known as ‘equal treatment’.

Your rights include:

‘equal pay’ - the same pay as a permanent colleague doing the same job
automatic pension enrolment
paid annual leave
You won’t be entitled to equal pay if you’re offered a ‘pay between assignments’ contract.

How to count your 12 week period
Start counting your 12 week qualifying period from your first day at work.

You don’t have to be at work for 12 weeks in a row - some types of leave count and there can be breaks.

Don’t count days on sick leave or a break

The qualifying period will pause for sick leave or breaks. Don’t count the days when:

you take a break of 6 weeks or less
you’re on leave due to sickness or injury for up to 28 weeks
you take annual leave you’re entitled to
the workplace closes, eg for Christmas or industrial action
you’re on jury service for up to 28 weeks
Count time off for pregnancy, paternity or adoption

Your 12 week qualifying period will continue through time off you have for:

pregnancy and up to 26 weeks after childbirth
adoption leave
paternity leave
If your leave is more than 12 weeks you’ll qualify for equal treatment when you return to work.

Start from zero for a new job or role

Your 12 weeks will start again if you:

get a new job at a different workplace
have a break of more than 6 weeks between jobs at the same workplace
stay at your workplace but take a new role that’s ‘substantively different’
A substantively different role is one that’s completely new, different work. It could be a combination of different:

skills, or requiring new training
pay rate
location
working hours

sangie595

I understood all that. But the hospital is not your employer. You switched employers from one agency to another. The rights are based on your employment contract - which is with the agency - and accrue during your employment with the agency. It is nothing at all to do with the hospital. So you do not have continuous employment from the original agency to the new agency, even if you are doing the same work in the same place. The information you are reading assumes that you stay with a single agency.

LittleVoice

I think the OP is correct - it is the placement which counts. This is to avoid a temp being passed round from one agency to another in order to get round the 12-week rule.
I'll try to return when I have checked.

xapprenticex

Would it apply if the transfer was voluntary?

sangie595

LittleVoice wrote: »

I think the OP is correct - it is the placement which counts. This is to avoid a temp being passed round from one agency to another in order to get round the 12-week rule.
I'll try to return when I have checked.

I believe you are referring to the anti-avoidance measures in the legislation. These are actually to prevent the hirer / agency moving the person around roles every 11 weeks to avoid the entitlement conferred under AWR (it's section 9 (6)). There are also provisions in this section to prevent hirers / agencies from passing workers around from one associated employer to another.

Neither apply in this case. The OP decided to terminate their contract with one independent agency, and move to another. There is no continuity of employment / contract between one agency and another. The AWR exist, quite rightly, to ensure that temporary workers are not exploited in relation to their main terms of employment; and also act as a disincentive to employers to retain agency workers as a replacement for employees who accrue greater entitlements. They do not put agency workers in a better position than normal employees - and normal employees, if they change employer cannot accrue rights from their previous employment, except in certain limited circumstances relating to associated employers (in the sae way agency workers accrue rights with associated hirers).

The argument that rights accrue based solely on the hirer is not mentioned in the legislation - I doubt anyone considered the fact that someone might stay with the same hirer but through an entirely different agency. Certainly the way the legislation is written it is implicit in the language that the underlying supposition was a worker with a single agency, but with possible multiple assignments with a single / associated employer. As far as I am aware, no case law exists to establish any accrual of rights across independent agencies.

It is probably worth mentioning too that the regulations do not apply to some agency workers and the OP has not indicated that they are positive the entitlement applies to them. The reference to this is actually further on than the quote cited by the OP. If the agency operates the Swedish derogation model, the AWR do not apply. They also do not apply if the agency in an in-house recruitment model.

LittleVoice

The OP is working in a hospital. As it is they who ultimately pick up the extra pay for any enhancement to rates from AfC (including additional holiday entitlement), the OP could have a word with her manager to see if they are willing to acknowledge her length of time in the role and to allow the current agency to charge them the higher rate.

Of course the NHS is trying to save money wherever it can and it may want to take advantage of the agency switch.

It is not unknown for workers to change agency while in a temporary role. My OH was working through Reed when they lost the contract with the client and was given the choice of staying with Reed and hope to get another suitable placement or moving to the new agency and staying in his role. (He chose to stay with the client and working through the new agency - but this was before the AWRs.)

sangie595

LittleVoice wrote: »

The OP is working in a hospital. As it is they who ultimately pick up the extra pay for any enhancement to rates from AfC (including additional holiday entitlement), the OP could have a word with her manager to see if they are willing to acknowledge her length of time in the role and to allow the current agency to charge them the higher rate.

Of course the NHS is trying to save money wherever it can and it may want to take advantage of the agency switch.

It is not unknown for workers to change agency while in a temporary role. My OH was working through Reed when they lost the contract with the client and was given the choice of staying with Reed and hope to get another suitable placement or moving to the new agency and staying in his role. (He chose to stay with the client and working through the new agency - but this was before the AWRs.)

I appreciate that it does happen. But when has anyone ever suggested that people who draft legislation know anything about the real world? Or even care about it? It was European legislation that forced this on the government. I doubt they would have cared about agency workers rights at all if they didn't have to. Agency workers have long been the employers hammer for employees rights - bringing in agency workers that undermine pay and conditions, amongst other things. The AWR start to address that, but they simply don't go far enough and there are too many ways around them.

amybroom

Thanks everyone. I know that in my last few jobs before this I got matched to the same pay as the non agency workers that I work with dependant on where I work so matched to different pay rates in each job.