2011 Agency Workers Regulations impact for ICO Agenda item 3.0 Discussion time. Restrictions? If Y please give the reason for the restriction below.

Transcription

1 Meeting Executive Team Date 22 August 2011 Paper title Agency Workers Regulations impact for ICO Agenda item 3.0 Discussion time 10 mins Purpose of paper Information and decision Restrictions on public access including staff Restrictions? N If Y please give the reason for the restriction below. [When considering the reason reference should be made to relevant FOI or EIR exemptions and you will need to check with Internal Compliance] Presenter ET sponsor Mike Collins or Vicky Blainey Vicky Blainey Corporate Plan aim Efficiency, Effectiveness and Value Summary The paper outlines the requirements of the Agency Worker Regulations which come into effect from 1 October. The paper requires decisions about the way in which the ICO introduces the provisions. Who has been consulted? No wider consultation required on introduction of provisions. Agency Workers Regs paper for ET, August 2011 Page 1 of 10

2 Agency Workers Regs paper for ET, August 2011 Page 2 of 10

3 Agency Worker Regulations impact on the ICO. Introduction / Aim of the paper The paper sets out the main provisions of the Agency Worker Regulations and how they will impact upon the ICO as a hirer of agency staff. Decisions needed and recommendations made Whether to apply 12 week rights from the first day of placement, given the marginal additional cost and the greater fairness of doing so. Whether to apply the terms of the regulations with immediate effect for current temporary agency staff, or wait until obliged to do so in October. Acknowledge the new regulations and the need to update some of the ICO s current provisions for agency staff. Background The paper sets out the background. Risks and opportunities The risk of failing to comply with the regulations is that a temporary agency worker may seek remedy through the Employment Tribunal system. A revised approach will give the opportunity to more clearly treat agency staff equally and the opportunity to retain skilled agency staff by allowing them to apply for internal vacancies. This has the potential for additional costs, however, as an agency placement fee may be incurred. Financial issues There could be some additional costs involved if the recommendations are accepted. This would equate to the cost of one day of annual leave over the course of a year, as annual leave would start at 25 days from Day 1 (instead of increasing to this after 12 weeks) Staffing issues The regulations may make managers more mindful of their obligations when appointing an agency temp. Agency staff will not be able to apply for internal vacancies if there is a redundancy/re-deployment process taking place and so their Agency Workers Regs paper for ET, August 2011 Page 3 of 10

4 right to apply for internal vacancies should not mean that at risk staff face greater competition for available posts. Devolved office issues None Accommodation issues Agency staff will have the same access to car parking spaces as directly employed staff. This is not the case at the moment, so a significant increase in agency temp staff will place additional pressure on parking spaces. Environmental issues None. Privacy issues None. Equality and diversity issues The paper does not concern any of the protected characteristics, but implementation of the regulations will allow for clearer equal treatment of agency staff. Conclusion The ICO will need to implement the regulations. Recommendations are made about how and when this should be done. Author Filepath Status and version Date last updated and reason Distribution Agency Workers Regs paper for ET, August 2011 Page 4 of 10

5 Summary Agency Workers Regulations Background and potential impact on the ICO. The Agency Workers regulations come into effect on 1 October As a hirer of temporary agency staff, these regulations will impact on the ICO. It is important that ET have an awareness of the regulations and what they mean, not least as this may affect decisions to authorise the recruitment of agency temps. The regulations provide for equal treatment of temporary agency workers (TAWs). Some of these rights are effective from day one of the placement; others only become effective after the TAW has been on their placement for twelve weeks. Given the nature of the rights are accrued after twelve weeks appointment, it is recommended that the ICO s default position should be to allow day one and twelve week rights from the first day of placement with the ICO. This will provide equality of treatment to staff who are directly employed by the ICO. The additional cost of adopting this approach, as opposed to waiting for the 12 week period to be completed, is roughly the equivalent of the cost of one day of annual leave per TAW. There will need to be changes to the provisions that the ICO makes accessible to TAWs, including: Allowing TAWs to use the ICO car parking facilities; Allowing TAWs to apply for internal vacancies at the ICO. Action/decisions required by ET i) Agree (or not) with the proposal to apply 12 week rights to all TAWs from the first day of placement. ii) Acknowledge the change in regulations and that some changes to ICO provisions regarding TAWs will be required. iii) Agree to implementing the terms of the regulations for existing TAWs with immediate effect, rather than waiting until 1 October. 1.0 Background 1.1 The Agency Workers Regulations come into effect on 1 October Agency Workers Regs paper for ET, August 2011 Page 5 of 10

6 1.2 The main purpose of the Agency Worker Directive from which the Regulations were derived was to ensure the appropriate protection of temporary agency workers by providing for equal treatment and to address unnecessary restrictions and prohibitions on the use of agency work. 1.3 The Regulations apply to: i) Individuals who work as temporary agency workers; ii) Individuals or companies who supply temporary agency workers; and iii) Hirers of temporary agency workers. 1.4 From time to time the ICO uses temporary agency staff to cover work, and the regulations will have a direct impact on the way in which these staff are appointed and their rights whilst working at the ICO. 1.5 There are various aspects of the regulations which impact on the workers and their agencies. The principal impact for the ICO will be on the acquisition of equal rights for agency temporary workers upon placement with us, and further extension of these rights after twelve weeks of a placement. 2.0 Day one rights 2.1 The agency temporary worker is entitled to various rights upon commencing a placement with the ICO (or any employer). 2.2 Day one rights include: i) Access to collective facilities and amenities; and ii) Access to information relating to vacancies. 2.3 Facilities and Amenities: TAWs already have access to many of the ICO s facilities and amenities including: i) Use of the social space and browseries and use of food preparation and storage equipment; ii) Use of the ICO shower and toilet facilities; iii) Use of the welfare room on the second floor in Wycliffe House; iv) Use of the food and drinks machines. 2.4 However, provision for access to facilities and amenities also includes access to the car parking facilities used by employees. This will require a change to the ICO s current Agency Workers Regs paper for ET, August 2011 Page 6 of 10

7 2.5 TAWs will also have access to any other on-site facilities which are available to a comparable worker who is an employee of the ICO. So, for example, if the ICO were to open a crèche TAWs would be entitled to place their child at the crèche (or join the waiting list) in the same way as their ICO colleagues. 2.6 TAWs are not entitled to off-site facilities or amenities which are not provided by the ICO. So, for example, they would not be entitled to subsidised membership of an off site gym. 2.7 An objective justification may be allowable as a reason for not providing equal access to facilities or amenities, though cost alone is unlikely to justify treating the TAW differently. 2.8 Information about vacancies: TAWs already have access to information relating to ICO vacancies simply by being able to access ICON. However, they have not been allowed to apply for vacancies advertised as internal only. 2.9 The regulations require that TAWs have access to information about any job vacancies that would be available to a comparable worker who is directly employed by the organisation. Effectively this regulation will mean that TAWs must be able to apply for posts which otherwise would have been only accessible to internal staff This requirement does not, however, apply in the context of a genuine recruitment freeze where posts are ring fenced for redeployment purposes or internal moves which are a matter of restructuring and redeploying existing internal staff in order to prevent a redundancy situation. 3. Twelve week rights 3.1 After a TAW completes a 12 week qualifying period with the ICO in the same role, they will be entitled to have the same basic terms and conditions of employment as if they had been employed directly by the ICO. 3.2 These entitlements include: i) Key elements of pay; ii) Duration of working time; iii) Night work; iv) Rest periods; Agency Workers Regs paper for ET, August 2011 Page 7 of 10

8 v) Rest breaks; vi) Annual leave; and vii) Pregnant TAWs who have completed the 12 week qualifying period will be entitled to paid time off for ante natal appointments. 3.3 The ICO already seeks to pay TAWs the rate for the job that they are doing (usually at the entry rate for the grade). One of the key elements which would need to be included, however, will be increases in pay which would apply to staff in the Development Zone if the person has been placed with the ICO for at least nine months. 3.4 As increases in pay are subject to satisfactory performance, this does beg the question whether TAWs should be included in the PDR process if their placement lasts more than six months (which is when employed staff move from the probationary procedure into the PDR process). 3.5 This would seem unnecessarily onerous. For the TAW to receive pay progression, confirmation of satisfactory performance should be confirmed by the line manager before informing the agency to increase the pay rate. Had the TAW been performing unsatisfactorily, then the placement should have been terminated anyway. 3.6 Under the provision for equal access to key elements of pay, TAWs will be entitled to access to overtime and enhanced overtime pay in the same way as directly employed staff. 3.7 The provision of equal working time, rest breaks etc will not impact on the ICO as TAWs have access to the same provisions as ICO staff. TAWs are generally able to work flexible in the same way as staff. The ICO is charged for the actual hours worked by the TAW and generally require the same pattern of attendance as comparable colleagues. 3.8 The provision of equivalent annual leave for the agency worker is likely to increase to cost of placements to the ICO. Currently, the agency will include the cost of holiday pay in the ICO s fee. In most cases this will be based on 20 days plus 8 public holidays. The minimum annual leave entitlement at the ICO is 25 days plus 8 public holidays, and so the agency is likely to increase their costs to reflect the greater level of holiday. In addition, the ICO would need to pay TAWs for the days of office closure over the Christmas/New Year period. Agency Workers Regs paper for ET, August 2011 Page 8 of 10

9 3.9 The regulations do not mean that TAWs will have access to the civil service pension scheme, or to the ICO s enhanced maternity, paternity and adoption schemes or to ICO enhanced occupational sick pay. 4. Other provisions 4.1 There are more detailed provisions in the regulations which concern issues such as how the first twelve weeks of an assignment are calculated, the means by which the regulations seek to overcome potential techniques for the avoidance of TAW rights by employers, and the remedies for TAWs if they feel they have not been treated fairly. 4.2 Details of this additional information can be found in the Department for Business, Innovation and Skills guidance which can be found at: 5. Recommendations 5.1 This paper has been largely concerned with the provision of information about the regulations, however there are some decisions required about the ICO s approach to the arrangements for TAWs. 5.2 Recommendations of this paper are as follows: i) That TAWs at the ICO are treated as directly employed staff in respect of Day 1 and Twelve Week entitlements from the first day of placement. The main enhancement beyond the ICO s current arrangements, and those obliged at day 1 anyway, will be matching the annual leave entitlement of directly employed staff. Over the course of a year, this would lead to an increase in cost of roughly one day of annual leave for each TAW. ii) iii) That the ICO works closely with the agencies we use to ensure that the organisation complies with the requirements of the organisation. That current agency staff (there are currently four, but this will go up to five shortly), are provided the Agency Workers Regs paper for ET, August 2011 Page 9 of 10

10 rights which will become effective on 1 October with immediate effect. Agency Workers Regs paper for ET, August 2011 Page 10 of 10