Cleaning Up Agencies

During April, the supply activist Tim Holden has been compiling a number of useful articles and links under the title ‘Cleaning Up Agencies’, providing supply members with useful links to key documents about your employment rights.

The Supply Network gave gathered all of the articles together for you here in one place, to make them an easily accessible resource.

The articles are:

• Part 1: The Key information documents (K.I.D.)
• Part 2: Key information documents (K.I.D.) – (Existing Employees)
• Part 3: Suspected Furlough Fraud
• Part 4: Transfer fees – the 8 week rule
• Part 5: Health and Safety
• Part 6: Dodgy umbrella companies…. Is yours legal?
• Part 7: Mini Umbrella Company Fraud
• Part 8: Parity Pay
• Part 9: Unpaid Trial Days

Thank you to Tim Holden for his time and effort in putting all this information together. The Supply Network hope that you find the following information interesting and useful.

Part 1: The Key information documents (K.I.D.)

According to the regulations, everyone registering with an agency after April 2020 should have been issued with a ‘Key Information document’ for every assignment. This document should include your agreed minimum rate of pay.

Read about it here: https://www.gov.uk/agency-workers-your-rights/basic-information-you-should-receive

Your agency cannot pay you less than this agreed minimum rate without prior agreement and issuing a new K.I.D.

If you have joined an agency since April 2020 and your agency has either not issued you with a K.I.D or has paid you less than the agreed minimum rate, without issuing you a new K.I.D, you should report them to the Employment Agency Standards Inspectorate. The link person is Dave Worboys (dave.worboys@beis.gov.uk). You can ask to be kept anonymous.

Also report this non-compliance to your union district secretary and even your MP.

Part 2: Key information documents (K.I.D.) – (Existing Employees)

If you signed up to your agency prior to April 2020, you can ask them to issue you a Key information document.

Read about it here: https://www.gov.uk/agency-workers-your-rights/basic-information-you-should-receive

They are not legally obliged to, as they are for anyone who joined since April 2020. However, many agencies are issuing them to everyone as standard good practice.

This document, now forms part of the mechanism to ensure standards across the agency sector.

Part 3: Suspected Furlough Fraud

Do you suspect you are a victim of Furlough Fraud?

With HMRC launching a new task force to investigate furlough fraud, now might be the time to try and report your suspicions again.

Read about it here: https://www.gov.uk/government/organisations/hm-revenue-customs/contact/report-fraud-to-hmrc?fbclid=IwAR21hmELeanx-C00j-e3qtU1tUf11fogkl7QNsyi6W2hyR-vJPzJWUbIXqU

Part 4: Transfer fees – the 8 week rule

Under the regulations, if the hirer (school) gives the worker a direct hire job less than 8 weeks after the end of their assignment – or less than 14 weeks after the assignment started, whichever is the later – then the agency can charge a transfer fee.

Read about it here: https://www.gov.uk/employment-agencies-and-businesses/fees-to-hiring-companies-transfer-fees?fbclid=IwAR37nFM4Hel4G4DQXkFRC00lYCtzsdaB9p_Zr9WAKr3zkIDCt09Gtf8lTs4

However, beyond this time limit, the agency cannot legally charge a finder’s fee. We have seen examples where agencies have tried to charge schools a finder’s fee up to 2 years after the supply teacher worked at a school. These unlawful finder’s fees should be resisted, both by the school and by the teacher (with the assistance of their union).

Part 5: Health and Safety

When an agency offers you an assignment, they must give you a written statement (the K.I.D) telling you:

• about any health and safety risks,
• your start date and how long the contract is likely to last
• the type of work, the location and your expected hours of work

Read about it here: https://www.gov.uk/agency-workers-your-rights/basic-information-you-should-receive?fbclid=IwAR1Y_eq5MRlwbSmvsX30zxBCjIqFezmnW2swnx5P_6B5_AUtwdIXitnReus

APSCo have highlighted that Recruitment agencies, working in the education sector, must get their act together.

Part 6: Dodgy umbrella companies…. Is yours legal?

It is becoming increasingly apparent that a number of umbrella companies are operating using illegal practices, including the use of multiple sub companies to avoid tax etc.

Many people don’t even know that they have been repeatedly moved between sub companies until they look at their personal tax account or notice the PAYE employer reference number keeps changing on their pay slips.

Part 7: Mini Umbrella Company Fraud

Check your personal tax accountant today ….

Since April 2019, there have been thousands of reports of people having issues with umbrella companies, many of who say their online personal tax accountant does not match their pay slips.

There are also many who have noticed their online tax account says they have moved between a number of companies who they have never worked for. Some umbrella companies are using fraudulent practices to make money using mini umbrella companies.

Read about it here: https://www.contractoruk.com/news/0014828hmrc_fraud_alert_over_mini_umbrella_companies_endorsed.html?fbclid=IwAR3cMnL0BoWdwIMYtfW52Li1T6AYbznpWX8agbFUJAU-DAA6uqNJqNOXE8w

With a growing number of suspected furlough fraud cases, it is vitally important that we all check our online tax accounts.

Read about it here: https://www.gov.uk/personal-tax-account?fbclid=IwAR2_e9l57wJQOsiZPNrzBgcTrWa97wvNAGHVgibt16E6zpvajaPYru80o8g

If the information is not correct, then it’s worth contacting HMRC or it is likely that many of us will be hit with tax bills soon.

Read about it here: https://www.gov.uk/government/organisations/hm-revenue-customs/contact/income-tax-enquiries-for-individuals-pensioners-and-employees?fbclid=IwAR3NvhuRmO8Mn7qrWJKgGEIqjlGDtWntsm87jo4nF8yLoAf2Djdy52JK6nI

You can also use your personal tax account to:

• check your Income Tax estimate and tax code
• claim a tax refund
• check your income from employment in the previous 5 years
• check how much Income Tax you paid in the previous 5 years
• check and manage your tax credits
• check your State Pension
• check or update your Marriage Allowance
• tell HMRC about a change of name or address

Part 8: Parity Pay

Equal pay for the role after the 12 week qualifying period (even 1 day a week) at a hirer (same school or schools in same LA or schools in the same MAT or at an Independent school) even if the 12 weeks are earned using different agencies.

“After an agency worker completes a 12 week qualifying period with the same hirer, in the same role, they will be entitled to have the same basic terms and conditions of employment as if they had been employed directly by the hirer. “

“An agency worker can qualify for equal treatment after 12 weeks in the same role with the same hirer, regardless of whether they have been supplied by more than one Temporary work agency (TWA) over the course of that period of time.”

“The 12 week qualifying period is triggered by working in the same job with the same hirer for 12 calendar weeks….. even if the agency worker is on assignment for only a couple of hours a week, it will still count as a week”.

Read about it here: https://www.gov.uk/government/publications/agency-workers-regulations-2010-guidance-for-recruiters?fbclid=IwAR0p0rrYBXBsUlXDUBWmhydS9V23veucffe30Ja0-1pSSfqxd5DUGMH6ok8

To calculate the 12 week qualifying period, you “do not count the days when:

• you take a break of 6 weeks or less
• you’re on leave due to sickness or injury for up to 28 weeks
• you take annual leave you’re entitled to, the workplace closes
• you’re on jury service for up to 28 weeks”

“Your 12 weeks will start again if you: have a break of more than 6 weeks between jobs at the same workplace,….stay at the same workplace but take a new role that’s ‘substantively different”.

Read about it here: https://www.gov.uk/agency-workers-your-rights/your-rights-as-a-temporary-agency-worker?fbclid=IwAR3_Ht3PHg6Y4UwVsW6MMYizaj0_X79kcHVFclGnPVW1mjYr1b3bu7MJ_zM

“A “hirer” will have its own legal identity and is responsible for supervising and directing the agency worker while they undertake the assignment…. An agency supply teacher can move between schools where the same local authority is the hirer without stopping the clock on the qualifying period unless it is a substantively different role” and “can move between academies where the same academy trust is the hirer without stopping the clock on the qualifying period”.

Read about it here: https://www.gov.uk/government/publications/employing-agency-supply-teachers?fbclid=IwAR0J3PPWfjTTDZsl5K2jsEY9MJE9weqZ9mQCmReDdMff95LjVz2i8tn5OB8

Part 9: Unpaid Trial Days

When are long unpaid trial days legal?

If your agency is asking you to do a full day unpaid trial period, it is very likely that they are not following the law and, as a minimum, should be paying NMW for the trial period.

There are reports of some unpaid trial work periods extending across more than one full shift or several days. Unpaid trials of this sort of length in a real (not simulated) work environment are likely to create an entitlement to minimum wage in all but very exceptional circumstances. This is because what is done by the individual would almost certainly have substantial value to the employer rather than testing the individual’s ability. This could mean that there is a contract under which the individual would be a worker entitled to the minimum wage.

However, in some cases an unpaid trial work period lasting a few hours may be reasonable and not create an entitlement to minimum wage. This is because the main purpose would likely be to test the individual, and what is done would probably have little or no other value to the employer.

Whether a work trial results in a contract requiring the minimum wage to be paid will depend on the circumstances of the case, but will consider the following:

• whether a ‘work trial’ is genuinely for recruitment purposes (if it is not, it will generally be considered to be work and the individual will be eligible to be paid the minimum wage)
• whether the trial length exceeds the time that the employer would reasonably need to test the individual’s ability to carry out the job offered (in the government’s view, an individual conducting work in a trial lasting longer than one day is likely to be entitled to the minimum wage in all but very exceptional circumstances)
• the extent to which the individual is observed while carrying out the tasks
• the nature of the tasks carried out by the individual and how closely these relate to the job offered (where the tasks are different from those which the job would involve, this may indicate that the employer is not genuinely looking to test the individual’s ability, but rather to get the tasks carried out)
• whether the tasks carried out have a value to the employer beyond testing the individual (where the tasks are carried out in a simulated rather than real environment, this will normally indicate that they do not have such a value and that the individual is not ‘working’)
• whether trial periods are important (aside from recruiting) to the way the employer runs its business (for example, where trial periods are being used by the employer as a means to reduce labour costs, this is likely to indicate that the individual is ‘working’).

If your agency is asking you to do an extended unpaid trial, bring this link to their attention.

Read about it here: https://www.gov.uk/guidance/calculating-the-minimum-wage/eligibility-for-the-minimum-wage?fbclid=IwAR0mDNRJokU_xhdegHG8uS4uXM5VZ5wWKnxTYXlYnZuU937K7j1XtwHPHaY

If feel your agency has clearly not followed the regulations, you can report them to HMRC…

Read about it here: https://www.gov.uk/government/publications/pay-and-work-rights-complaints?fbclid=IwAR0vwZIrC9S2GeOLLlqJcEetad7uARC9BhA9Q7ZOYNWhc8heQ4b7JBR9J4Y