Leader magazineASCL - Association of School and College Leaders

Clarity finally given on agency staff

The courts are steadily making the boundaries more and more clear as to the employment rights, or rather the lack of them, of agency workers. In Muschett v HM Prison Services EWCA, it was found that not only did an unfortunate worker have no contract of employment with the hirer, he had no contract with the agency either. There was no 'mutuality of obligation', so the decision to dispense with his services, despite a significant period of service, was entirely lawful.

Better news for agency staff is that the Agency Workers Regulations 2010 come into effect in October 2010. After 12 or more calendar weeks of service, in one or more assignments to the same employer, an agency worker will be entitled to certain rights, provided there is not a break of more than six weeks between assignments. Legitimate absences, such as illness, maternity or jury service, cannot be counted as part of the six-week break.

The rights concerned are essentially to be treated no less favourably than employees in respect of pay and conditions; and freedom from unfair dismissal or dismissal for asserting a right conferred by the regulations.

Schools and colleges will be pleased to know that, in general, it will be the agency which will be liable for any breach. However, if you do employ agency staff, ensure you have checked with your human resources provider how it will affect you.

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