We advertised a teaching assistant post in June and decided to appoint an agency worker who had been with us for a couple of weeks. We now have to pay certain fees and have the option of offering a temp-to-perm transition as she is under contract with the agency until December. The employee says she will miss out on pension, continuous service and sick pay under this arrangement, and points out that the role was advertised to begin in September. But the fee we would have to pay to secure her start in September is very high. The employee suggested that if she left the agency for a certain period, the fees would no longer be payable – but she wants us to pay her for the time she is unemployed, which we are not happy with. What should we do?
There are two issues to tackle here. The first is the relationship between you and the agency. It’s important to look at your contract because if the gap between the two weeks your new employee worked for you and the September start is more than eight weeks, it could mean no fee is due. Even if there is no way to contractually avoid the fee, it may be worth discussing a fee reduction or waiver if the agency can expect business from you in the future.
The second issue is your employee’s terms and conditions as protected by the Agency Worker Regulations 2011. You are right not to get involved in her decision to potentially leave her agency, or to put her on your payroll before she starts work. Her decision to leave is hers alone.
When the employee starts work for you in September, it should be in line with the terms and conditions on offer to others doing the same job. I am unclear of any benefit from a temp-to-perm conversion under the circumstances – this is clearly now a permanent hire and the relevant rules should apply.