Following the introduction of The Agency Workers Regulations in 2010, we have written this post to give a short and easy explanation of the key facts regarding agency worker rights. If you need to know more, please get in touch.
- Agency workers are entitled to certain employment rights such as national minimum wage.
- Employers should be aware of the Agency Workers Regulations.
- Agency staff are classed as workers rather than employees.
- The Agency workers directive gives equal treatment to those who have been with the hirer for 12 continuous weeks in a given job.
- To establish the rights in the regulations the agency worker needs to be able to identify a comparator.
Agency workers are classed as “workers” rather than as employees. All workers, including agency workers, are entitled to certain rights which include:
- Paid annual leave.
- Rest breaks and limits on working time.
- The National Minimum Wage.
- No unlawful deductions from wages.
- Discrimination rights under the Equality Act 2010.
- Health and Safety at work.
The Agency Workers regulations give agency workers the entitlement to the same or no less favourable treatment as comparable employees with respect to basic employment and working conditions, if and when they complete a qualifying period of 12 weeks in a particular job.
The regulations cover agency workers supplied by a temporary work agency to a hirer. This includes most agency workers that people refer to as ‘temps’. The regulations also cover agency workers supplied via intermediaries. To establish the rights in these regulations, the agency worker needs to be able to identify a comparator. The regulations don’t cover the genuinely self-employed, individuals working through their own limited liability company, or individuals working on managed service contracts.
Day one and 12 week rights for agency workers
From day one of their employment, an agency worker will be entitled to:
- The same access to facilities such as staff canteens, childcare and transport as a comparable employee of the hirer.
- Be informed about job vacancies.
After a 12-week qualifying period, an agency worker will be entitled to the same basic conditions of employment as if they had been directly employed by the hirer on day one of the assignment, specifically:
- Pay – including any fee, bonus, commission, or holiday pay relating to the assignment. It does not include redundancy pay, contractual sick pay, and maternity, paternity or adoption pay.
- Working Time rights – for example, including any annual leave above what is required by law.
Agency Workers (regardless of their employment status) will also be entitled to paid time off to attend ante-natal appointments during their working hours.
If an agency worker is working on more than one assignment the agency worker will have two or more assignments that need to accrue separately. In other words if an agency worker has assignment A and assignment B, they would need to work for 12 weeks on assignment A before their rights apply to assignment A and 12 weeks on assignment B before their rights apply to assignment B. The regulations require that a new assignment would need to comprise ‘substantively different work or duties’ for the qualifying period to start again.
Advice available from gov.uk
For employers – https://www.gov.uk/government/publications/agency-workers-regulations-2010-guidance-for-recruiters
For workers – https://www.gov.uk/agency-workers-your-rights/overview