The University is committed to ensuring that all members of its workforce are engaged on the most appropriate contract and that this engagement is completed in a transparent and fair way.
The University recognises the need for flexibility within its workforce to respond to various circumstances e.g.
short term absences;
peaks in demand;
one off events; or
to gain specialist skills/knowledge.
Where a department identifies such work, it may be appropriate to engage an agency worker.
Before engaging an individual to undertake work within the University, please use thepayment decision tree. This tool has been develop to support you to determine the appropriate contract of employment and method of payment for services delivered to the University by an individual, or individuals, acting in their own right or employees of an organisation or business.
Understanding employment status
Before engaging an agency worker, it is important to understand their employment status.
An agency worker can be defined as either:
Self employed with the role of the Agency being to put individuals in touch with end users who need their services; or
‘On the books’ of, or ‘fully employed by an Employment Agency Business.
For a contract of employment (employee status) to exist, three key elements must be present:
the individual must be under an obligation to perform the work personally;
there must be “mutuality of obligation” between the parties; and
the employer must have sufficient rights of control over the employee.
These 3 elements (above) should not be present for the engagement of an agency worker;
the agency may send a substitute to undertake the work, if the University were satisfied that they were capable/qualified to undertake the work;
the agency would be responsible for providing work to the agency worker;
the agency would have the right to control the agency worker.
Agency Worker Regulations
With effect from 1 October 2011, the University is obliged to treat agency workers the same as if they were employed by University of Sheffield, in relation to:
access to certain facilities, vacancy information and additional provisions for pregnant workers/new mothers from day one of engagement; and
access to ‘equal treatment’ in relation to basic terms & conditions once they have attained a 12-week qualifying period (not necessarily all gained in one engagement).
IR35/Off payroll working regulations
It is essential that agency workers are not used to fill long term vacancies and that the department does not imply a direct employment relationship with the worker. However, where an "employment type" relationship* exists in terms of the supervision, direction and control of the work being undertaken by the agency worker, the hiring department must confirm the position in writing to the Agency. This will ensure that the Agency is responsible for ensuring compliance with the revised HMRC IR35/Off payroll working regulations that are effective from 6 April 2017.
*An "employment type" relationship exists when a person performs work or services under certain conditions in return for remuneration.
The use of an agency workers provides quick access to a wide range of skills and experience with little administrative activity. However, all departments should be seeking to limit their agency usage where possible in order to control cost. As such, before proceeding to engage an agency worker you should assess your needs and the potential options available to you, as there may be more cost effective means of meeting these.
The integration of agency workers into University life should be limited to the extent necessary to be able to fulfil specific work requirements.
Principal individual rights associated with contract
This may depend upon the nature of the individual’s contractual relationship with the Agency/Employment Business i.e. worker, employee or self-employed.
However, minimum rights of the worker include protection:
Working Time Regulations
Data Protection Act 2018
National Minimum Wage Act
Health and Safety legislation
Access from day one to some University amenities and facilities
Access to relevant University of Sheffield employment terms once they have gained a 12 week qualifying period (as defined under the Agency Worker regulations 2010)
University statutory obligations
Immigration & Preventing Illegal Working: If using an Agency other than those from the Framework Agreement, to limit risk, consider negotiating a term with the employment agency that they will be responsible for undertaking the immigration checks for agency workers.
Pre-placement Checks: Any criminal record checks should be made when the individual would be working with vulnerable adults or children. These should be undertaken by the agency via the Disclosure and Barring Service. The Agency/Employment business must inform the University if it obtains information which gives it reasonable grounds to believe the work-seeker is unsuitable for the position and must end the supply of that work-seeker.
In the case of an agency, the minimum rate of remuneration and length of notice.
The Agency/Employment Business must obtain confirmation of the following (and provide in writing):
The agency worker’s identity
That the worker has the required experience, training, qualifications or authorisation for the post
The individual is willing to work in the position available
If they have been engaged for service or under a contract of employment.
Before providing services, an agency/employment business must also agree terms with the relevant University department.
Financial authorisation: Requires prior approval by Head of Department or relevant budget holder. A Framework Order will need to be generated.
Responsibility for administration/record keeping:
Responsibility for administration and record keeping is between the hiring department, the agency worker and the Agency/Employment Business.
The hiring department will need to ensure that they use a provider from the Framework Agreement (i.e. Hays and Spring Personnel), However, other agency providers may be required for specialist work. In such cases the hiring department may need to contact the Procurement Office to have a new Agency/Employment Business added to the vendor list.
Work allocation: Normally the Agency would identify an individual with appropriate skills and experience, based upon information supplied by the hiring department.
Day-to-day work activity is the responsibility of the hiring department.
Pay and grading: As per the Agency/Employment Business Contract with the individual. However, should they attain a 12 week qualifying period they will be entitled to the equivalent grade and basic terms as if appointed directly by the University to a comparable role undertaken by an existing UoS employee(so likely to incur greater costs).
Payment process: As per the Agency/Employment Business Contract with the Hiring Department.
Tax treatment: If the Agency/Employment Business is responsible for paying the individual it will be the agency’s responsibility to make appropriate deductions for tax and national Insurance contributions.
Staff benefits: See also ‘Pay and Grading’ section above for further information. Not eligible for UoS occupational benefits e.g. occupational levels of sick pay. If the agency worker is paid by the Agency/Employment Business, the Agency will be responsible for ensuring that the National Minimum Wage and Working Time Regulations are complied with. Agency workers have access to certain facilities from ‘day one’ of their engagement.
UCard Allocation: External UCard for building access and provision of email accounts, if appropriate.
Please note before engaging an agency worker, please consider using the services of myJobshop to fulfil the vacancy. This service offers departments access to a pool of ‘ready to work’ students for short notice work, whilst providing valuable student employment opportunities.
Due to the need to manage agency costs more effectively and as part of our response to support our compliance with the Agency Worker Regulations (effective from 1st October 2011), the University has created a Framework Agreement covering the provision of the following support roles: