TEMP FAQ's
Agency Workers Directive as of October 1st 2011
You are probably aware by now that the there are new government regulations coming in that may affect some of the rights you are entitled to as a temporary worker. Below are some answers that might help to explain some of the questions that you may have.
If you need any further information please don't hesitate to contact your assigned consultant, our HR Coordinator Amy Osterley or any member of senior management at Boyce Recruitment.
Q. I keep hearing about the 'clock' in relation to my assignments what does this mean?
A. The guidelines refer to the 'clock' as a metaphor for how the assignment and the qualifying period in weeks are ticking. For instance if you work for four weeks then go on holiday for two weeks then the clock is paused for you and starts ticking again for when you return to work.
Q. What if I only work part time or a few hours per week?
A. However many hours you work each week it is still counted as a week. If you work a few hours per week then it is viewed as a week, and counts towards your Twelve Week qualifying period.
Q. What if I have already worked for a client for longer than twelve weeks before October 1st2011?
A. The regulations are not retrospective and the clock on the assignment will only start ticking from October 1st 2011.
Q. Do I have to let my agency know about my work history?
A. You are not legally entitled to, however if they ask for this information it is advised that you provide them in detail, as it may mean you are entitled to more benefits and the agency can help to communicate this for you and ensure that you receive them.
Q. If I am paid a daily rate that it higher than a permanent employee doing the same job, does this mean that my rates will be brought down?
A. No, the regulations state that if you were being paid less than a comparable employee doing the same job then after Twelve Weeks in the assignment you may be entitled to the same rate of pay (there are grounds of objective justification for this ). It doesn't however work the other way round, you are allowed to be paid more if already agreed by the client and agency so your rate would not have to be brought down.
Q. Am I still entitled to holiday pay?
A. Yes, holiday pay is still accrued in the same way – please see our Holiday Pay FAQ's. You are always entitled to the statutory 28 days holiday per year (inclusive of bank holidays and pro -rata'd) however if the company you are working in offers over the statutory level then you might be entitled to more holiday, this depends on if there is a permanent comparable employee carrying out the same duties as you who is entitled to the extra holiday. We recommend that you seek further advice about this where relevant please speak to your assigned agency consultant who can discuss this in further detail.
Q. What if the client offers over and above statutory holiday pay, am I entitled to that?
A. If you work in the same role for the same client for Twelve Weeks qualifying period and above and there is a comparable employee who is entitled to the extra holiday pay then you too are entitled.
The standard 28 days (inclusive of public holidays) will be paid as per normal and any extra days are rolled up into your hourly rate and paid weekly in your pay.
If you want to take the extra time off (over the 28 days) and only up the amount of days they provide, then you will have to take it as unpaid leave as you have already had the pay rolled up into your pay (only for the extra days entitled to)
For example: If you work for the same client for a year and you are entitled to 28 days statutory holiday plus the client offer an extra five days per year. You will take the 28 days as per normal, but the extra days will be broken into an hourly rate and rolled up for you. The leave is then still available but only as unpaid.
Q. If I have a break during my assignment does my assignment 'clock' start again when I get back?
A. It depends for how long. The qualifying period or the 'clock' is only paused for:
- a break of up to six weeks for any reason
- Certified sickness up to 28 weeks
- Jury service up to 28 weeks
- If the client has closed down (ie due to industrial action)
- Time off during public holidays (Christmas shut down etc)
A break of over six weeks (apart from maternity leave) will mean that the 'clock' starts again and the assignment period will start again. If the break is related to childbirth or maternity/paternity you will be treated as if you have carried on working in that assignment so the clock will keep ticking.
Q. If I work with more than one agency for different roles can I be working towards qualifying period for more than one company?
A. Yes, as soon as you start work for any company as a temporary worker you will start clocking up time towards your qualifying period. It is advised that you let the agencies know in as much detail as possible, which companies you are working for and for which timeframes so they can help you monitor your entitlements.
Q. What if I work for the same company but in an entirely different role does my clock still keep ticking?
A. No, the clock would restart if the role is substantially different then the clock will be reset.
Holiday Pay
Last year the European Court of Justice (ECJ) ruled that the option for employment businesses to elect to pay holiday pay as rolled-up or accrued and paid when the temp worker has taken leave, is no longer lawful.
The UK Government is under the obligation to implement this ruling of the ECJ and acknowledge that rolled-up holiday pay was against the aims of the EU Working Time Directive
From 16th July 2007 Boyce Recruitment will be accruing holiday pay for its Temporary Workers.
We thought that this brief guide may help but should you have other questions or feel confused by any element of this change please contact Samantha Judd or Miriam Caulfield at Boyce Recruitment.
Q. What does the law say about holiday entitlement?
A. The Working Time Regulations 1998 set down the minimum annual leave provisions for workers.
Under the Working Time Regulations, workers (including part timers and most agency and freelance workers) have the right to:
- four weeks paid leave each year (since 23.11.99)
- payment for untaken statutory leave entitlement on termination of employment
Holiday pay is seen as a piece of health and safety legislation as such holiday pay can only be paid for leave or after the temp assignment has finished. Temp workers are not permitted to work as well as claim holiday pay.
Q. Where can I find out my entitlement to holidays and holiday pay?
A. Details of holidays and holiday pay entitlement can be found in:
- the temporary workers contract for services
- the temporary booking confirmation produced for each assignment
- monthly statements of holiday accrual sent out to temporary workers
The written statement is required by law and will contain sufficient detail to enable the employee's entitlement to be precisely calculated, including any entitlement to accrued holiday pay on the termination of employment.
Q. What are public holidays?
A. Generally, public holidays include bank holidays, holidays by Royal Proclamation and 'common law holidays'. Banks are not allowed to operate on bank holidays. When public holidays in the Christmas and New Year period fall on Saturdays and Sundays, alternative week days are declared public holidays.
Q. Do employees have the right to paid leave on public holidays?
A. There is no statutory entitlement to paid leave for public holidays.
Any right to paid time off for such holidays will depend on whether you request this day to be paid as leave and deducted from your holiday pay accrual.
Such paid public holidays will be counted as part of the statutory four weeks holiday entitlement under the Working Time Regulations 1998.
Q. How is a part-time worker's holiday entitlement calculated?
A. Part-time workers are entitled to the same holidays as full time workers, calculated on a pro-rata basis. For example, an employee who works three days a week is entitled to twelve days paid holiday - their normal working week multiplied by four.
Q. Can untaken leave be carried over to another leave year?
A. The Working Time Regulations 1998 do not entitle a worker to carry leave over into the following leave year. Neither may unused leave be replaced with a payment in lieu except where employment is terminated.
Q. What is an accrual system?
A. The accrual system means that leave is built up monthly in advance at the rate of one twelfth of the annual entitlement.
For example, temps will accrue 12.07% of your standard hourly pay rate for every hour worked. For example if you are paid on the basis of 10.00/ hour then we will also accrue an additional £1.207 for holiday pay.
This accrual will be held in trust and the temp worker can request holiday pay in line with the amount of holiday pay accrued.
Temp workers may have accrued more than the leave they request and the remainder will be left in the account OR the worker may request more leave than they have accrued and then the full amount will be released but in effect the worker will not receive pay to cover every day of their leave.
Q. How must a worker apply for leave?
A. Temp workers are required to give notice to Boyce Recruitment if they wish to take a holiday. The notice must be twice as long as the period of leave requested. For example, a worker wanting one week's holiday needs to give two week's notice.
Boyce Recruitment will contact the Client with the leave request and then confirm with the Temp Worker that the Client is in agreement.
Q. When does a leave year start?
A. Boyce Recruitment leave year is January 1st-31st December in each calendar year.
The introduction of the accrual system on 16th July 2007 does not affect the leave year as Temp workers will already have received the holiday pay as part of a rolled up pay rate.
Is there an entitlement to accrued holiday pay for leave untaken on termination of employment?
All entitlement to leave must be taken during the course of the Leave Year in which it accrues and, save as may be set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form, none may be carried forward to the next year. The Agency Worker is responsible for ensuring that all paid annual leave is requested and taken within the Leave Year.
Disclaimer: These facts are prepared as guidelines in relation to the Agency Workers Regulations and reflect the Employment Business view on AWR. This information should not be copied, passed on or used for legal advice. We advise that you seek further information at ACAS http://www.acas.org.uk/index.aspx?articleid=1873