Navigating the realm of agency staff rights is more critical than ever, with a surge in claims due to unmet legal entitlements. School business leaders must grasp the intricacies of agency workers’ rights and adhere to legal obligations to pre-empt any potential claims
CREDIT: This is an edited version of an article that originally appeared on VWV
According to the Agency Workers Regulations 2010, agency workers possess distinct rights during assignments with a school or trust. A pivotal point is ensuring equitable treatment, where agency staff should not face less favourable conditions than their permanent counterparts.
Day one rights
SBL’s must ensure that all 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 job vacancies. Again, this applies from the first day of their assignment.
These obligations fall entirely on the school as the hirer, and accordingly, any liability for failure to comply with this requirement would result in liability on the school. 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. This includes terms and conditions relating to pay, working time, rest periods and holiday.
Schools have sole legal responsibility for breaches of day one rights. Liability for breach of week-12 rights, however, can fall on both the hirer 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 schools most commonly run into issues. The school 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 still bears responsibility for failure to comply with the week-12 rights and therefore, it is critical that schools take steps to protect their position when engaging agency workers.
Protecting your position as a hirer
To circumvent potential issues:
• Know your obligations: Familiarise yourself with agency worker obligations. • Facilitate access: Ensure agency staff access facilities and job information from day one. • Review agreements: Scrutinise agreements with agencies, focusing on obligations to provide information. • Ensure compliance: Adhere to obligations diligently. • Calendar key dates: Note the 12-week mark for agency staff and communicate with the agency for timely compliance.
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.
So, SBLs, make sure agency staff get their day one perks and hit the 12-week mark on the right note, ensuring everyone’s treated fairly, and your school stays on the legal and happy side of things!
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