Agency workers

Agency worker or employee?

Your employment status is important as it will affect your rights. Agency staff are generally classed as 'workers'. According to Gov.uk, you’re an agency worker if you have a contract with an agency but you work temporarily for a hirer. Agency workers have ‘workers’ rights and also have the benefit of legal protection under the Agency Workers Regulations 2010 (see the section on your rights as an agency worker below).

If there is a dispute about your employment status it may be a matter for an employment tribunal to decide. They will usually consider written documentation as well as evaluating the factual circumstances in which the work was performed.

The title 'employee' or 'self-employed' is not conclusive but could help establish the intentions of the parties. You may not be considered an agency worker if you:

• find work through a temporary work agency but are self employed
• you take a ‘pay between assignments’ contract
• you use an agency to find permanent or fixed term employment (check with the company that hired you). 

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 for tax purposes. If you have further questions, please contact us.

This checklist is to assist you in preparing for agency work. It provides information about the checks you should undertake before starting work and the documentation the agency may request from you. It is important to check any agreements and assignment beforehand as they may differ between agencies and hiring organisations.

1. Check your agreement with the agency

Before looking for work for you, your agency must give you a key information document and written statement of employment particulars (from 6 April 2020). The key information document is a brief summary of your pay and what deductions will apply. Full details are on the UK government website.

The written terms of engagement will set out the terms of your work and 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). They will also include:

• your notice period
• your pay and if an umbrella company will manage your pay – see further guidance below
• your holiday entitlement
• sick pay and pension entitlement – see sections in this guidance below.

Important - an agency cannot 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. See our guidance on contracts.

2. Checks the agency may make:

It is standard practice for and agency to request the following:

• proof of identity including a recent photograph and confirmation of your eligibility to work in the UK in accordance with UK government guidelines
• Nursing and Midwifery Council (NMC) registration check (for workers on the NMC register)
• Disclosure and Barring Service (DBS) or Disclosure Scotland certificates (formerly criminal records bureau certificates) sometimes known as ‘police checks’
• references
• information relating to your health (see below)
• confirmation that you have an adequate knowledge of English (or other appropriate language) to enable you to communicate effectively, both verbally and in writing
• proof of indemnity.

3. Check the details of each assignment before you start

Before you start a new assignment ensure that you check:

• your start date
• how long the contract is likely to last
• the type of work - you should only be sent to areas that you are competent to work in (please see standard 9 of our Nursing Workforce Standards for more information)
• 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 – see section on training below.

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 for example, a long term health condition which means that you are unable to work in a particular environment. They should not, however, ask about your general sickness record. Agency workers are also protected from discrimination under  the Equality Act 2010. If you feel that you have been treated unfairly on the basis of your health or previous sickness record, please contact us. 

Chapter 8 of Public Health England's Integrated Guidance for the health clearance of HCWs and the management of HCWs infected with BBVs (2017) outlines the responsibilities of agencies and employers/end users - including which checks to undertake in which circumstances.

HIV tests and exposure-prone procedures (EPP)

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. Check chapter 2 of Public Health England's Integrated Guidance for the health clearance of HCWs and the management of HCWs infected with BBVs (2017) for more information on EPPs - including definitions. 

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 contact us.

You are entitled to the following rights as a worker:

• rest breaks and limits on working time
• paid annual leave (minimum 5.6 weeks)
• the National Minimum Wage
• ·no unlawful deductions from wages
• protection from discrimination under the Equality Act 2010
• certain maternity or paternity rights (also Maternity and parental rights for agency workers)
• health and safety at work.

Additional rights under 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.

'Day one' 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. 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.

The UK government website provides detailed information on how to calculate the 12 week period, taking into account any breaks and pauses.

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.

Pay between assignment (PBA) contracts

From 6 April 2020 agency workers have the right to be paid the same as directly recruited comparable staff subject to a 12 week qualifying period. If you believe you are being treated unfairly, please contact us.

Exemptions to the regulations:

The regulations do not apply to certain individuals for example those who find work through a temporary work agency but are in business on their own account (for example, if they have a business to business relationship with the hirer, who is a client or customer) or 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). If you are unsure of your position, then please contact us for advice.

Some agencies may use what is called an umbrella company as a payroll intermediary. For further information about umbrella companies please see the information from the government and ACAS website. If your agency uses an umbrella company to process your pay, you are generally classed as an employee of the company. You will need to check your contract with the umbrella company before agreeing to their terms.

The use of an umbrella company is likely to mean that you are unable to rely on the RCN’s indemnity scheme. See our indemnity scheme for full details. If you are uncertain of your status or have any questions after reading the indemnity scheme information, please contact us.

You will not be entitled to any contractual sick pay. As an agency worker, you may be entitled to Statutory Sick Pay (SSP) if you satisfy the eligibility criteria. Find out more about SSP, and how to claim, at gov.uk. 

You may also want to check any agency policy or agreement on how to contact them if you are sick and cannot work.

Our financial wellbeing guide for self-employed members and agency workers also provides helpful advice and links to other related resources.

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.

You must be provided with a payslip. Please keep accurate records of hours worked and the terms and conditions of the assignment.

If there are any problems with your pay please see our underpayment guidance and overpayment guidance advice guides which include template letters for you to use. If you are unable to resolve the issue following the guidance, please contact us.

If you're genuinely self-employed (but find work through an agency), you may be able to access advice and support around breach of contract for recovery of earnings. See our self-employment guide for more.

Your agency should outline your right to access mandatory training and full details of this plus other training and helpful RCN resources can be found in our training advice guide.

Agencies should have a procedure to deal with any issues or complaints made. If you are asked to write a statement or are subject to an investigation please see our detailed guidance on statement writing and investigations. Contact us for advice if your conduct or practice is being questioned.

Your agency may also prevent you from working for them following any report of misconduct until the situation is resolved.

If you are working for an agency, you may be unsure or worried about raising concerns and how to do so. You continue to have an obligation under the NMC Code to report any concerns that you may have regarding poor care for example, issues arising due to unsustainable pressures in the workplace.. Please see our raising concerns guidance for further information.  If you require support and advice on how to raise concerns, please contact us.

ACAS

Gov.uk

Health and safety concerns

Maternity and parental rights for agency workers

Prioritising personal safety

RCN Nursing Workforce Standards