Policy overview
In the successful delivery of our services, we recognise the vital role of:
- temporary agency workers
- relief workers
- other off-payroll workers play
This policy sets out the standards and procedures to ensure they are appropriately engaged, trained and deployed. It is essential that the use of these temporary resources is cost-effective and supports the delivery of high-quality services.
We are committed to equality of opportunity in recruitment, employment, transfer and promotion. We will treat agency, relief and off-payroll workers fairly and consistently, regardless of:
- age
- disability
- gender reassignment
- marriage and civil partnerships
- pregnancy and maternity
- race (which includes colour, nationality and ethnic or national origins)
- religion or belief
- sex (formerly gender)
- sexual orientation
This policy supports our commitment to diversity and equality. It ensures that we comply with existing legislation and best practice.
Principles
We will only use agency workers to provide temporary additional resources. This allows for flexibility on a short-term basis from time to time. We will hire temporary agency workers from our contracted agency provider. We may engage them to assist with:
- occasional work, such as one-off projects
- response to planned or unplanned peaks
- sudden increases in demand for our services
- the absence of employees (for example, due to holiday or sickness or other planned and unplanned absences)
- cover for a leaver, when appointment from the recruitment process has not been possible due to time restraints or lack of suitable candidates
- cover, or backfill, or for a secondment
We should not use agency workers to cover for maternity or adoption leave. These are planned, known absences which may for be a longer period of time. Generally, we would recruit to provide cover using the appropriate recruitment procedure.
We cannot use agency workers to cover for employees involved in strike action.
Service areas directly engage relief workers. We include them on a register of relief workers. We will call upon them and offer work on an ad hoc basis when the need arises. Relief workers are under no obligation to accept work. We are under no obligation to offer it.
We define off-payroll workers as contractors, consultants or interim workers. We may engage them directly to deliver a specific requirement. They are generally paid via invoice. We will assess our IR35 obligations to ensure we provide the most appropriate mechanism for pay.
Agency workers
When hiring a temporary agency worker you should use our contracted agency provider - Matrix.
Matrix manages all the employment agencies (vendors) that we use. They are compliant with the IR35 requirements and legislation. They will make the appropriate tax and National Insurance deductions.
Managers must not negotiate rates directly with vendors or agency workers. A manager requesting that an agency worker from the approved providers must tell them:
- the agency worker's intended start date
- the approximate length of the assignment
- the reason why additional resources are needed
- the appropriate rate of pay (based on current market conditions)
- job description
- names of any preferred individual, if the agency offers a choice of workers
Before they start
A manager or supervisor will need to undertake some checks before your agency worker can begin in the role you are asking them to undertake. You will need to ask to see the following information:
- enhanced DBS check (if applicable)
- evidence of their identity
- evidence of their right to work in the UK
- evidence of any relevant qualifications.
From day one of an assignment
We will give agency workers the same access to our collective facilities and amenities as a comparable employee. Agency workers will have access to the following where they are available:
- any on-site canteens
- all toilet and shower facilities in the relevant area of work
- staff restrooms
- breastfeeding facilities
- vending machines
- staff car parking (if appropriate for the role)
- information about any relevant internal job vacancies and the opportunity to apply
Pay and terms and conditions
We give all agency workers access to comparable pay and conditions from day one.
Agency workers are entitled to the same basic pay as an employee or worker doing the same role. It includes a pro-rata salary and any additional payments such as shift allowance and overtime pay. It does not include a bonus or reward not related to the amount or quality of the work that they have done.
Working hours
Agency workers will work the same basic working hours as other employees or workers doing the same job. Agency workers may opt out of the 48-hour working week under the Working Time Regulations 1998 if they wish.
Rest periods and night work
Agency workers are entitled to the same rest periods, breaks and night work as other employees doing the same job.
After 12 weeks of an assignment
After 12 weeks with us, agency workers are entitled to the same basic working and employment conditions of other employees. The 12 weeks does not have to be within the same service. The 12 weeks is known as the 'qualifying period'.
Annual leave and time off
Agency workers are entitled to the same paid annual leave as employees doing the same job. This leave entitlement will be pro-rata to the length of the assignment.
What is not included
The right to equal and comparable pay and conditions does not include:
- occupational sick pay
- occupational pensions
- maternity, paternity or adoption pay. The regulations do not affect an agency worker's statutory entitlements
- redundancy pay (statutory or contractual)
- benefits in kind, or benefits requiring an eligibility period
- bonuses that are not linked directly to the contribution of the individual. For example, a loyalty bonus given to all
- the right to participate in salary-sacrifice schemes
Information for agency workers
Induction
Agency workers should be given an induction to ensure they settle in quickly to their role. They should be given a guided tour (if relevant) of the offices and general facilities such as bathrooms, rest areas, canteens to help them get their bearings. In addition the worker should be provided with information on relevant policies that must be adhered to at all times including the Health and Safety policy and procedures which should be explained to them. All tools and equipment necessary for them to undertake the job role must be provided.
Facilities and relevant vacancies
An agency worker may make a written request for equal access to collective facilities or relevant vacancies.
We will respond in writing within 28 days with:
- relevant information about access to collective facilities and access to vacancies
- our reasons for the treatment of the agency worker regarding access to collective facilities and vacancies
Equal treatment
After 12 weeks, an agency worker is entitled to the same basic employment and working conditions as employees. If they believe this not the case, they should make a written request to their agency for further information.
The agency must provide a written response within 28 days. This should set out relevant information about the basic working and employment conditions of our employees.
If the agency does not respond within 30 days:
- the agency worker can make a written request to their manager at the council
- we will respond in writing, within 28 days, with the relevant information
Moving agency workers to new assignments or roles
A manager may require an agency worker to take on a new assignment. They may want to re-engage an agency worker whom they have used before.
If the agency worker is undertaking a new assignment within the same role, their qualifying period will continue to accrue. The agency worker will continue to work in the same role unless:
- the duties that make up the new role (or the main part of it) are substantially different from the previous role (or the main part of it)
- the agency has informed them, in writing, of the type of work we expect them to do in the new role
If the new assignment is a different role, the agency worker's qualifying period will start from the start date of the new assignment. The same applies if there is a break of more than six weeks between assignments. However, this is subject to certain exceptions.
Managers will notify the agency if the agency worker's duties are changing. The agency will provide the agency worker, in writing, with:
- notification that the new role is substantially different
- a description of the new role
- an explanation that the qualifying period will start again
Training and development of agency workers is the responsibility of the agency. We provide induction and training for the agency worker to carry out their role effectively.
Absences
There are exceptions where a break of more than six weeks between assignments' pauses' the qualifying period. This means the qualifying period picks up where it left off when the agency worker returns. Reasons for this include that they have a break:
- of up to 28 weeks due to sickness or injury
- to take annual leave or any other leave to which they are entitled
- of up to 28 calendar weeks to allow them to perform jury service
- due to regular and planned shutdown of the workplace
- due to industrial action within the organisation
Family-friendly rights
An agency worker's qualifying period continues to run if any break is due to:
- pregnancy
- childbirth
- maternity
This applies if it takes place during pregnancy or up to 26 weeks after childbirth. It includes any health and safety reason which prevents them from working. The qualifying period continues to run during any breaks from the agency, such as :
- maternity leave
- adoption leave
- paternity leave
Any agency worker should inform us, and the agency, in writing, if they:
- are pregnant
- have given birth within the previous six months
- are breastfeeding
We will carry out a risk assessment for the role they are carrying out.
If we identify any potential risk to health and safety, we will where possible, make reasonable adjustments to the role. If this is not possible, we will inform the agency. The agency will seek alternative work for the agency worker.
An agency worker who has completed 12 weeks in the same assignment is entitled to take paid time off to attend ante-natal appointments. This is as per our maternity policy and entitlements. In the same way, they can also take time off for adoption appointments.
For more details, read our family leave policy.
Agency to employment
All agency and off-contract workers can access information on Council vacancies via our job site, and can submit an application for any roles advertised externally.
It is recognised that through working with the organisation on an agency or off-contract basis, the worker may develop knowledge and skills that it would be of benefit to the organisation to retain. Likewise, the individual may wish to work directly for the organisation.
Where an agency worker/off contract worker has been undertaking a role in the organisation that is deemed to be a vacancy through the usual approval process, it may be possible to offer this worker the position on a fixed term or permanent basis.
In line with the redeployment policy, any employees on the 'at risk' register will have prior interview consideration. We will also undertake an assessment to ensure no other employees would be disadvantaged should a direct offer be made.
If there are no such permanent employees, we may offer the worker a fixed term or permanent contract when:
- they have successfully completed a minimum of 6 months ( dependent on when an appointment can be made without LCC incurring any additional costs as outlined in the agency terms of business) on assignment with LCC in this role
- they were subject to an appropriate recruitment process, for that specific post at the outset of the assignment, and
- the possibility of it becoming permanent was made clear during the recruitment process, where this could be foreseen at this point
If the worker does not meet the above criteria, or where more than one worker would, we will advertise the post in line with our normal recruitment procedures. The manager will meet with post-holder to inform them that we will advertise the post. If they choose not to apply or are subsequently unsuccessful at interview, we will follow the appropriate process to end the assignment when the successful candidate is appointed.
Any offers will remain conditional until all of the required pre-employment checks applicable to the role have been successfully completed. Please refer to the recruitment policy for further details. This employment will also be subject to the successful completion of a probation period if required
If the individual is an off-contract worker, particularly if outside IR35, it is their responsibility to take into consideration any changes accepting an offer of employment would have on their tax liabilities. Any offer made will be subject to the individual becoming an employee of LCC.
Relief workers
Service areas directly engage with relief workers. We maintain a register of relief workers. They are available to be called upon when a short-term need arises.
Relief workers are engaged to work:
- on an as and when required basis
- on an irregular basis
- where we, and the individual, are genuinely not obliged to offer and accept work respectively
- where there is no intention of continual employment
We engage relief workers via a recruitment process where:
- they must satisfy all recruitment and vetting checks
- there is no offer of continual work
- they are not entitled to a contract of employment
- they are not employees
If a working arrangement becomes regular or ongoing, the employment relationship would likely change. In this case, a relief worker may be entitled to become an employee with full employment rights. Managers will take advice from HR if this situation arises.
Relief to employee
All relief workers can access information on Council vacancies via our job site, and can submit an application for any roles advertised externally.
It may also be beneficial for the organisation to review the interest in either fixed term or permanent employment from relief workers when a vacancy arises. This enables the organisation to utilise the skills and knowledge developed and provide employment and the associated benefits to those who are interested.
Where a relief worker has been undertaking a role in the organisation that is deemed to be a vacancy through the usual approval process, it may be possible to offer this worker the position on a fixed term, temporary or permanent basis.
In line with the redeployment policy, any employees on the 'at risk' register will have prior consideration. We will also undertake an assessment to ensure no other employees would be disadvantaged should a direct offer be made.
If there are no such permanent employees, we may offer the worker a fixed term or permanent contract when:
- they have worked ‘regularly’ as a relief worker with LCC in this role, or for sufficient time to enable managers to assess suitability through observations and supervisions
- they were subject to an appropriate recruitment process for that specific post on enrolment as a relief worker
Where more than one employee meets these criteria, a shortened recruitment process of expressions of interest followed by a selection process will be followed. This employment will also be subject to the successful completion of a probation period as required.
Off-payroll workers – contractor, consultant or interim
If a manager is unable to source an agency or relief worker through the corporate agency contracts, they may go 'off-contract'. This means they will source the need elsewhere through an alternative off-payroll working arrangement. It may mean engaging a contractor, consultant or interim worker on a contract for the provision of consultancy services. Appointment of these will go through the normal resource approval process, to ensure the position is approved and budget allocated.
Following approval the manager must contact the Commercial Team Infrastructure (CTInfrastructure@lincolnshire.gov.uk) to discuss their requirements and obtain appropriate advice.
Part of this process involves the manager determining whether or not off payroll working rules (IR35) applies to a worker by completing the HMRC Check for Employment Status Test (CEST) tool. This is to help determine a worker's employment status for tax purposes.
If the worker is inside of IR35 (off-payroll working rules do apply) we are responsible for the tax and National Insurance deductions as if they were an employee, or if outside of IR35 (off-payroll working rules do not apply) the worker is responsible for this themselves.
The hiring manager will carry out this assessment in all cases. A copy will be saved with the individual's name and emailed to corporatehradminsupp@lincolnshire.gov.uk.
The hiring manager must keep this record regardless of whether the assessment indicates the assignment is inside or outside IR35.