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Agency workers

A guide for RCN members working for an agency, including employment status, rights, police and health checks.

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Agency worker or employee?

Agency staff are generally classed as 'workers' rather than as employees and have the benefit of legal protection under the Agency Workers Regulations 2010 (see further below).  


All workers are entitled to: 

According to Gov.uk, you’re an agency worker if you have a contract with an agency but you work temporarily for a hirer. You’re not an agency worker if you (for example): 

  • find work through an agency but work for yourself - you may be self-employed (see below) 
  • use an agency to find permanent or fixed-term employment – you should check the position with the company that hired you 
  • take a ‘pay between assignments’ contract - you’re an employee of the agency.

However, employment status is not always clear; in different circumstances you may be an 'employee' of either the agency or the hirer and therefore not an ‘agency worker’ in employment law. Alternatively, as an agency worker you may be classed as an employee during specific assignments, but the gaps between may break any continuity of employment. This would disqualify you from certain statutory employment rights, including rights around unfair dismissal.

Employment status is a matter for the employment tribunal to decide. They will usually consider written documentation as well as evaluating the factual circumstances in which the work was performed. The employment tribunal has sole responsibility for determining and evaluating all the relevant evidence. The title 'employee' or 'self-employed' is not conclusive but could help establish the intentions of the parties.

If you’re unsure of your employment status, check your contract. HM Revenue and Customs (HMRC) Employment Status Indicator (ESI) tool can also be useful for checking worker status. If you have further questions, please call us.


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Practical considerations

Agency workers are paid on an hourly basis. The rate of pay will depend on your agency, location, level of expertise, the day of the week and the time of day. As an agency worker you could receive higher rates of pay than if you were working as a permanent employee. This is partly to compensate for the fact that assignments can often be last minute or cancelled at short notice.

Working in a wide range of departments in a short space of time means that agency workers are exposed to many different situations, which can help advance your clinical skills, but it will also mean you must be able to think on your feet and adapt quickly to change. 

As an agency worker you could choose the hours that you want to work. This makes agency work a popular choice for parents and those with personal commitments as there is no obligation to work on particular days and you only need accept the shifts that you are able to work. Likewise, the flexibility of agency work is often attractive to retired nurses who would like to refresh their skills or supplement their income.

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Before you start agency work

Your agency must give you written terms of engagement before looking for work for you. These should include: 

  •  whether you’re employed under a contract for services or a contract of employment (which will be important for determining your employment status, as above) 
  •  your notice period 
  •  your pay 
  •  your holiday entitlement.

The agency should also undertake/obtain the following:

  • Nursing and Midwifery Council (NMC) registration check (for workers on the NMC register)
  • Disclosure and Barring Service (DBS) certificates (formerly criminal records bureau certificates) sometimes known as ‘police checks’
  • references
  • information relating to your health (see below)
  • confirmation of your eligibility to work in the UK
  • confirmation that you have an adequate knowledge of English (or other appropriate language) to enable them to communicate effectively, both verbally and in writing.
When you’re offered an assignment the agency must tell you: 

  •  your start date 
  •  how long the contract is likely to last 
  •  the type of work 
  •  about any expenses you may have to pay 
  •  the location 
  •  your hours 
  •  about any health and safety risks 
  •  about any experience, training or qualifications needed for the role.

If your agency changes your terms 

An agency can’t change your terms and conditions without telling you. The circumstances in which the agency can make changes should be outlined in your written agreement with them. If you agree to changes you must be given a new document with the full details of the changes and the date they changed. See also our guidance on contracts

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General health checks

The agency manager must ensure that you do not have a history of illness which may make you unsuitable for the duties to which you are being assigned. There are specific rules in place in relation to asking questions about disabilities prior to employment in light of the Equality Act 2010. For more information please see our advice on references.

There is Department of Health (DH) guidance titled ‘Health clearance for tuberculosis, hepatitis B, hepatitis C and HIV: new healthcare workers’ which has now been implemented across the NHS.

The guidance in summary is that:

'…. all new healthcare workers have checks for tuberculosis disease/ immunity and are offered hepatitis B immunisation, with post-immunisation testing of response and the offer of tests for hepatitis C and HIV. These standard health clearance checks should be completed on appointment.'

For new healthcare workers who will perform exposure-prone procedures (EPPs) additional health clearance should be undertaken. Definitions of EPPs can be found in annex B of the DH guidance.

These checks should be completed before confirmation of an appointment to an EPP post, as you will be ineligible if found to be infectious.

HIV tests

HIV tests are only required if the role that you are undertaking is an exposure-prone procedure (EPP) role. If you are undertaking an EPP role, then the agency is right to ask to test you. If you are not working in an EPP role, then there is no requirement to test you. The agency is within its rights to request the test, but as an independent health care worker you can choose whether to continue to work for that agency.

If the agency insists and you are unwilling to participate in testing then we would recommend that you speak with us on 0345 772 6100.

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Agency Workers Regulations 2010

The Agency Workers Regulations 2010 give agency workers the entitlement to the same, or no less favourable, treatment as comparable employees with respect to basic employment rights and working conditions. Some of these rights apply on day one of an assignment, others after a 12-week qualifying period.

Those not protected by the Regulations are individuals who:

  • find work through a temporary work agency but are in business on their own account (ie where they have a business to business relationship with the hirer, who is a client or customer)
  • are working on Managed Service Contracts; where the worker does not work under the direction and supervision of the client organisation, but instead another company/the supplier
  • work for in-house temporary staffing banks where a company employs its temporary workers directly (and they only work for that same business or service)
  • find direct employment with an employer through an “employment agency”
  • are on secondment or loan from one organisation to another.

The Department for Business Innovation and Skills (BIS) indicates that people who work for in-house temporary staffing banks (where a company employs its temporary workers directly) are likely to fall outside the scope of the Regulations. If you are unsure of your position then please call us for advice.

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’Day one’ rights and extended rights

From the first day of the assignment, you will have access to facilities such as the staff canteen, transport facilities, car parking and child-care facilities, and the right to be notified of any job vacancies.

Rights after 12 weeks

The qualifying period for extended rights under the Regulations is triggered by working in the same role with the same hirer for 12 calendar weeks. A calendar week comprises seven days starting with the first day of an assignment, regardless of the number of hours worked on a weekly basis.

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 (see below)
  • paid annual leave.

Breaks and pauses in your qualifying period

The 12 weeks that count towards qualifying for equal treatment can be interrupted or paused in certain ways until the agency worker returns to same role. However, your qualifying period will start again at zero:

  • if you move to a new assignment with a new hirer
  • where there is a break of more than six weeks between jobs with the same hirer
  • if you remain with the same hirer but you’re doing a ‘substantively different’ role.

Further information is available at Gov.uk.

What is a substantively different role?

Your agency must write and tell you that the role has substantively changed and the qualifying period is reset to zero. Changing your line manager or location is not enough. There must be a real difference to the role for example a combination of new training, different skills used, different pay rates, location and working hours.

Anti-avoidance

The Regulations also contain a number of ‘anti-avoidance’ provisions, to prevent employers manipulating the length of assignments to avoid the 12-week qualifying period and the workers entitlements. See Gov.uk for more information.

Pay between assignment (PBA) contracts (known as the Swedish Derogation)

Under the Regulations a temporary work agency can offer you a permanent contract and pay between assignments. It would mean that after 12 weeks with a hirer you will not be entitled to the same pay as if you had been recruited directly. You will still be entitled to other provisions under the Regulations such as annual leave after 12 weeks, 'day-one' rights and rest breaks.

Before agreeing to a PBA contract, or if you believe you are being treated unfairly, please call us on 0345 772 6100.

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Pensions

Auto-enrolment regulations require employers to automatically enrol employees into a pension scheme and make a minimum level of contributions on their behalf. Agency workers are covered by these arrangements. Either the agency or the organisation where they work has the responsibility for automatic enrolment assessment.

See the NHS Employers website for more information if you work in the NHS. If you work outside the NHS, please see our advice on pensions and retirement.

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Regulation of agencies

Agencies are regulated by the Conduct of Employment Agencies and Employment Business Regulations 2003.

These regulations govern the conduct of the private recruitment industry and establish a framework of minimum standards that clients, both work-seekers and hirers, are entitled to expect.

Agencies may ask you whether you want to opt in or opt out of the Regulations. We would not generally advise members to opt out of employment protection legislation, but ultimately it is a personal choice.

In addition, employment agencies, businesses, and their staff should be aware of - and comply with - other relevant legislation, statutory codes and official guidance. This might relate to your working time, equality and discrimination, equal pay, health and safety, national minimum wage (see our advice on pay), and trade union membership.

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Further information

If you are an agency worker in the NHS see the NHS Employers website.

Gov.uk

ACAS

Maternity Action: Maternity and parental rights for agency workers

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Need more advice?

Call RCN Direct on: 0345 772 6100