New rights for agency workers or administrative burden?

New regulations may give locums more rights but will they lead to fewer and shorter contracts, asks Mark Hunter

Boon or bust?

Important new rights for downtrodden temporary workers, or irksome administrative burden? Opinion is divided among locum social workers, agencies and employers on what the Agency Worker Regulations (AWR), which came into force on 1 October, will actually mean for social care.

On the face of it, the legislation delivers substantial new rights and entitlements to agency staff. But, in practice, many locum social workers will be wondering what AWR gives them that they have not already got.

Most agency social workers are paid more than their permanent counterparts, so the right to pay parity at 12 weeks is unlikely to see locums singing from the rooftops. Nor will the news that AWR excludes many important rights, such as to pensions, travel expenses and equal treatment under disciplinary procedures.

There is also confusion caused by the myriad ways in which agency social workers are paid. Locums paid through their own limited companies won’t be covered by AWR at all; those who are paid through umbrella companies will be subject to those companies’ own arrangements; those on an agency’s PAYE payroll will be fully covered by AWR.

According to David Allan, deputy head of the British Association of Social Workers’ advice and representation service, the changes could prove significant. “This could fundamentally change the nature of agency work, partly by granting new rights to agency workers but also by reducing the flexibility that attracts people to locum work in the first place.”

But he also advises that the sector must not jump to conclusions over the likely impact because employment law is based on precedent, so until a few cases have been through industrial tribunals, it is unclear how employers and agencies will respond.

Day one rights should have already kicked in for agency social workers, while the first week 12 rights will not be granted until Christmas. However, there is little evidence of agency workers rushing to embrace their new entitlements. Most don’t seem to have noticed they are even there

 “Although there has been lots of media coverage, we have found that there is still a lack of awareness and understanding about the regulations among agency staff,” says Jonathan Coxon, managing director of recruitment consultancy Liquid Personnel. “We’ve produced a guide for our temporary workers to ensure they are fully informed about the regulations and know where they can obtain further clarification.”

Speaking anonymously to Community Care, one agency social worker who has been working in a London local authority for more than six months reveals there has been very little information about the introduction of AWR and that “nobody really knows what’s going to happen with it”.

“I’ve had some information from my agency but nothing from the local authority, so it’s all very unclear,” she says. “It would be a good thing for us agency staff to win the right to things like free parking, but I don’t know if it will ever happen. At the moment, we are paying for our own parking, whereas the permanent staff get theirs for free. But now, of course, they are talking about taking away free parking from the permanent staff to save money.”

Under AWR, the onus is on employers to provide all agency workers with day one rights as soon as they begin their contract. The responsibility for providing week 12 rights is shared between the employer and the agency. Employers who fail to comply can be fined up to £5,000.

The most significant effect of AWR in the social care sector may therefore be to cause employers to reduce their reliance on agency staff, something that is already happening due to budget cuts. Research by de Poel, which acts as an intermediary between employers and agencies, has found that, although the number of hours worked by agency staff across all sectors has risen by 9.35% over the past year, in the care sector it has fallen by more than 24%.

But de Poel’s legal director, Joe Tully, does not believe that AWR will add significantly to this trend. “I don’t think there’ll be a fundamental shift in the way social care employers use agency staff. There might be some small changes to manage their temporary workforce more cleverly, such as hiring temporary staff directly or offering shorter contracts. The social care sector is unique, as there is a historical tendency to pay agency staff more than their permanent equivalents. So that’s taken the sting out of the regulations and employers are being a little more relaxed about them.

“But it would be wrong to think that, just because pay parity isn’t a problem, employers can forget about AWR altogether. Day one rights for social care staff may be quite complicated and will require a lot of communication between the hirer and the agency.”

Rachel Perowne, HR director of social enterprise Turning Point, believes the main impact of AWR for employers will be in setting up systems to track the use of agency staff. “We are aware of the changes and have been planning for them for some time. As an organisation, we look to minimise our use of agency staff to ensure continuity for our service users, as well as cost effectiveness. Nevertheless, we do use agency staff in some areas and we greatly value their contribution.”

Turning Point usually aims to use agency staff only for short periods, but Perowne says the new regulations may change that. “We need to ensure we have a system in place that tracks exactly how long agency workers are with us, and takes into account any breaks, to make certain that we are compliant.

“We continue to work with our suppliers of agency staff on our strategy concerning the regulations and have already had a big drive to communicate additional guidance concerning the use of agency staff to all managers.”

The agent’s view: ‘Another ill-thought-out law': Ian Brindley, managing director, Entrust Social Care, says:

“I can understand why the government has brought in AWR as it should protect agency workers from being exploited. But from our point of view it is a case of another ill-thought through piece of legislation and yet another hoop for agencies to jump through. I don’t understand why social workers haven’t been excluded [from AWR] on the basis that they are genuine professionals.

“In practical terms, many locum social workers probably won’t be affected by AWR as they are almost always paid more than their permanent counterparts. Moreover, many now operate their own limited companies on a business-to-business relationship basis. The sticking point will be holidays. Bringing locums’ holiday entitlement into line with the public sector will ultimately cost the client more.

“It is difficult to say whether AWR will reduce demand for agency positions as the use of locums has already fallen away significantly as a result of budget constraints.

“However, we are already seeing clients starting to offer 10-week contracts, which is bound to affect consistency and continuity of care.”

Agency worker rights

Day one rights: all agency workers have the same rights as permanent staff to facilities such as canteens, childcare, parking etc. They must also have access to information on job vacancies.

Week 12 rights: after 12 weeks in the same job, agency workers have the same rights as permanent staff to basic working conditions such as annual leave, rest breaks and time off for ante-natal appointments.

(picture of Rachel Perowne by Tom Parkes)

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