For many years, the status and rights of agency workers were the subject of much debate, resulting in several court cases brought by agency workers unsure of their employment status and rights.
In response, the Government introduced The Agency Workers Regulations 2010 (“the Regulations”) to clarify the situation and address discrimination confronting agency workers in matters such as holiday entitlement, working time conditions and pay.
This legislation, which has been in force since 1 October 2011, has had a significant impact on the temporary working industry in the UK. So long as they complete a qualifying period of twelve weeks in the same job, the Regulations effectively give agency workers the entitlement to the same basic employment and working conditions as if they had been recruited directly by the business hiring them.
In this two-part article, we look at the rights of agency workers and the implications for the business hiring them. In this part, we provide an overview of the main provisions of the Regulations, focusing on the meaning of the term ‘agency worker’ and what specific rights are provided under this legislation. In the next part, which can be found here, we look at the general employment rights that agency workers may benefit from.
Who The Agency Workers Regulations Apply To
The term ‘agency worker’ is often used in the workplace as a general way of describing a variety of contingent workers. According to the Regulations, however, an agency worker is an individual supplied by a temporary work agency to work for the hiring organisation, in a particular job, under their direction and supervision, on a temporary basis.
The Regulations cover a typical agency-worker relationship, in circumstances where the agency worker has a contract with and is paid by the agency, rather than the hirer.
The legislation does not affect permanent employees, fixed-term employees, casual workers, secondees from another business, or self-employed independent contractors. It also does not apply to workers supplied and supervised by a managed service provider (such as a cleaning or catering service), or employees taken on into permanent employment via a recruitment agency.
Agency Workers’ Rights From Day 1
From the first day of an assignment, an agency worker has the same rights as employees employed directly by the hiring organisation to use any shared facilities and services. This might include:
- childcare services, for example, where a creche is available
- canteen or drinks machines
- a prayer room
- toilets or shower facilities
- car parking or transport services
This does not mean, however, that an agency worker will get priority over other staff and this right does not extend to off-site facilities provided by a third party, such as subsidised gym membership.
From day one of the assignment, an agency worker also has the right to access information about any relevant employment vacancies within the hirer’s business. To this end, a general announcement or notice on the intranet would be sufficient to fulfil this obligation.
Agency Workers’ Rights from 12 Weeks
Once an agency worker has undertaken the same role (whether on one or more assignments) with the same hirer for twelve continuous calendar weeks (“the Qualifying Period”), they are entitled to the same basic conditions as they would have been entitled to for doing the same job, had the hiring company directly recruited them. This is known as ‘equal treatment.’
This entitlement is based on what a comparable employee or worker would receive, i.e. someone doing the same or broadly similar work to the agency worker, usually at the same workplace.
The rules surrounding calculating the Qualifying Period can be quite complicated. Despite the need for a ‘continuous’ period of twelve calendar weeks, certain breaks (such as those relating to sickness and injury or pregnancy, childbirth and maternity) will allow the period worked before the absence to continue to count towards the Qualifying Period. It is worth speaking to a legal adviser if you are unsure whether an individual has reached the Qualifying Period.
The equivalent terms and conditions that agency workers have a right to after the Qualifying Period relate to:
- pay (this includes basic pay, holiday pay, commission, overtime and individual performance-related bonuses)
- working time duration
- night work
- rest periods
- rest breaks and
- annual leave
It is the agency that is responsible for setting the agency worker’s terms and conditions and will be liable for any breach in relation to week 12 rights. However, the hirer is responsible for passing on the correct information to the agency about basic working conditions and pay. As a result, liability for any infringement of week 12 rights may pass to the hirer if it fails to provide the necessary information or gives incorrect information. It is therefore important that the agency and hiring organisation work together to ensure the individual receives the correct terms and conditions.
Claims Under the Agency Worker Regulations
If an agency worker feels that their rights under the Regulations have been breached, they can bring a claim to an employment tribunal so long as they do so within three months of the alleged breach.
The hiring organisation will be held liable for failing to provide Day one rights, and, depending on the circumstances, may be jointly liable with the agency in circumstances where an agency worker’s week twelve rights have been breached.
Where a breach is found, a tribunal can make a financial award based mainly on the loss of the worker’s earnings and there is no upper limit to this award. Tribunals can also make recommendations to the employment agency and/or hiring organisation as well as make declarations of the worker’s rights.
Furthermore, it is important to be aware that there are anti-avoidance provisions in the Regulations that apply where assignments have been deliberately structured in such a way as to avoid the 12-week qualifying period from applying. An example of this is where an agency worker has completed two or more assignments with the same hirer, and the most likely reason for this structure of the assignments is that they were intended to preclude the agency worker from being entitled to equal treatment. In such circumstances, the tribunal may apply a fine of up to £5,000 against either or both the agency and the hirer.If you would like further information on agency workers’ rights provided under the Regulations, please contact our expert Employment Law team via email.
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