What are the legal rights of agency workers?

Agency workers receive certain rights from day one, and greater rights after a 12-week qualifying period

Hot on the heels of new Acas guidance for agency workers, Charlotte Allery, solicitor at Coffin Mew, provides an overview of the guidance and a reminder of their key legal rights.

Last month, Acas released new guidance for agency workers after its helpline identified that many agency workers were not aware of their legal rights. The Acas helpline revealed that it had received 10,754 calls in 2017 about agency workers, with 3,150 calls being complaints about not being paid correctly.

Acas senior guidance adviser, Tom Neil, commented that “it is clear that there are agency workers who are unsure about their rights at work”. But are companies aware of their legal obligations towards agency workers?

Indeed, recent cases such as Kocur v Angard Staffing Solutions, where the Royal Mail Group was found to be in breach of the Agency Workers Regulations for treating an agency worker less favourably, highlight that many companies are unclear of the legal requirements.

We consider some of the important questions and rights concerning agency workers below:

What is an agency worker?

An agency worker is an individual who has a contract with a recruitment company, to be supplied to work temporarily for a hiring company (or, as commonly known, a temp). This tripartite relationship means there are obligations on two parties: the agency and hiring company.

A genuinely self-employed individual will not be an agency worker, so if the individual is on business on their own account, the following rights will not apply to them.

Agency Workers Regulations 2010 (AWR)

The AWRs provide important rights for agency workers, concerning their basic working and employment conditions, from day one and after a 12-week qualifying period.

Day one rights: From the first day of an agency worker’s assignment, he or she must be given the same access as directly employed staff to facilities and amenities. This includes the canteen, childcare facilities (such as a crèche) and car-parking or transport services.

Agency workers also have the right to be informed of any relevant job vacancies at the hiring company, to give them the opportunity to find permanent employment.

Importantly, the liability for failing to provide day one rights will fall on the hiring company only, as an agency has no involvement in providing these day one rights.

Week 12 rights: An agency worker will be entitled to the same basic conditions as they would have been entitled to for doing the same job, had they been directly recruited by the hiring company.

This only applies once they have undertaken the same role, whether on one or more assignments, with the same hirer for 12 continuous calendar weeks.

There are complicated rules surrounding calculating the 12-week qualifying “clock”, so it might be worth speaking with a legal adviser if you are in any doubt whether an individual has reached the qualifying period.

The equivalent terms and conditions that agency workers are entitled to after the qualifying period are:

  • pay (including basic pay, holiday pay, individual performance-related bonuses, commission or overtime);
  • duration of working time;
  • night work;
  • rest periods;
  • rest breaks; and
  • annual leave.

This must be looked at on a term-by-term basis, rather than looking at the whole package. As recent case law has shown, it is not possible to compensate for less favourable terms in one respect, with more favourable terms in another (for example, a higher hourly rate to compensate for poorer rest breaks).

Importantly, an agency and a hiring company are each responsible for a breach of an agency worker’s week 12 rights, to the extent that they are responsible for the infringement.

It is therefore crucial for both parties to work together to ensure that the individual receives the correct terms and conditions.

What about pensions auto-enrolment?

Pensions are not included within the AWR, which does mean that agency workers are not entitled to pensions that match what they would receive directly from the hiring company.

However, agency workers are still jobholders for the purposes of automatic enrolment. As such, agency workers must be automatically enrolled into a qualifying pension scheme.

The responsibility for automatic enrolment will fall on the agency, which has the contract with and pays the individual directly.

What about statutory sick pay (SSP)?

Provided the qualifying conditions are satisfied, agency workers will be entitled to receive SSP. Again, the obligation to pay this to the individual will fall on the agency, but commercial arrangements may dictate that the hiring company has to cover the cost.

Any enhanced company sick pay that a hiring company offers will not come within the AWR, so an agency worker will not be entitled to receive this.

What parental rights do they have?

The AWR contains specific requirements for pregnant workers, once the 12-week qualifying period has been met.

After this time, pregnant workers are entitled to paid time off for antenatal appointments, and alternative work (or pay) must be provided where they are unable to continue with an assignment for health and safety reasons.

Agency workers are entitled to statutory maternity, paternity, adoption or shared parental pay, if the qualifying conditions are met. The obligation to pay these statutory amounts will fall on the agency, with the contract with the individual.

However, agency workers will only be entitled to statutory maternity, paternity, adoption or shared parental leave if they are employed by the agency (as in, they have a contract of employment, rather than the usual contract for services).

What next for agency workers’ rights?

The topic of atypical ways of working, including agency work, is a hot topic right now, with the Government still running a consultation on the recommendations made in Matthew Taylor’s review of modern employment practices.

His review contained a number of recommendations specifically affecting agency workers, so the above rights may be expanded upon in due course. Watch this space.

Charlotte Allery

About Charlotte Allery

Charlotte Allery is a solicitor - commercial and employment services - at Coffin Mew

14 Responses to What are the legal rights of agency workers?

  1. Avatar
    OBOlinx 2 May 2018 at 9:34 am #

    Good pointers on the legal rights of contract employees and agency workers..

  2. Avatar
    Kevin Sykes 13 Sep 2018 at 10:13 pm #

    Should an agency pay agency workers for training if the training is a requirement of their job.

  3. Avatar
    Scott 12 Oct 2018 at 8:17 am #

    Can an agency worker claim for jury service?

  4. Avatar
    Hany 12 Oct 2018 at 10:19 pm #

    Why agency workers do not have a law that say there’s a max period of time of working for some firm before getting a full time contract because it seems like agency workers are getting used for years and years without getting a permanent contracts and then they get laid off without even thanks.

    • Avatar
      Lee Sapsford 23 Dec 2018 at 12:02 pm #

      I couldnt agree more. I was let go after 16 months with no notice after working for the same engineering company mainy because I was bringing an agency worker claim against them and just before Christmas at the worst possible time and knowing there was still work there till June 2019. Recruitment Agencies are laws unto themselves.

      • Avatar
        Prav 5 Jan 2019 at 10:32 am #

        This has just happened to me. How is your claim going?

  5. Avatar
    nkululeko 19 Nov 2018 at 4:47 pm #

    so if you work for agency more than 12 weeks which department you mast go to…

  6. Avatar
    Warne 19 Dec 2018 at 1:03 pm #

    I’ve been with an agency for 3 years mostly. Regularly have issues with pay and holidays,did 6 months continuously at one place and always got paid less than full timers. I Don’t think my holidays are correct in terms of entitlement. Get all the rubbish noboddy wants to do. We all know they openly flout the law and there isn’t much we can do about it. Unfortunately for me where I live there isn’t many full time jobs that pop up so I’m stuck in a rut. Fingers crossed.

  7. Avatar
    Ralphae 8 Jan 2019 at 8:05 pm #

    My pay was delayed and reduced by £50 over Christmas and my agency told me today I should be grateful I got anything at all …

    Hence currently searching my legal rights!…

  8. Avatar
    Mr Said Issad 14 Jan 2019 at 10:19 am #

    I am currently working as an agency worker and have worked in the same place for 8 years .
    The place is closing and I will be kicked out with nothing at All ? No redundancy money or anything else.
    I tried to go self employed but was not allowed due to IR35 regulations . So i have worked as a PAYE and paid the full tax and NI.
    So on one hand I cannot be self employed and benefit from tax & NI reductions , on the other hand although being classifed as employed I do not get anything after working for 8 years as agency worker ?
    Is this fair ? how can this be allowed ???? Totally unfair and not logical ??
    Working for 8 years a an agency employee ( not self employed) should not ever be allowed.
    I feel I should get some redundancy payment even if it is the goverment basic pay.
    please feed back

  9. Avatar
    S.Issad 15 Jan 2019 at 12:58 pm #

    Can one work as agency worker ( not self employed but PAYE) for 8 years in a cmpany and not qualify for redundancy ? is this correct ? how ca you be classified as a temporay employee when working in the same place pace for 8 years ??

  10. Avatar
    M McNerney 13 Apr 2019 at 11:02 pm #

    Same with me, I worked as a agency worker for over 8 years when they told me they didn’t need me anymore. There should be more rights for agency workers – after a certain amount of time the company has to take you on as permanent staff. I think agency workers are treated unfairly and rights for agency workers need to be put in place as soon as possible.

    • Avatar
      Jennifer Dearn 3 May 2019 at 3:17 am #

      I’ve been working as an agency worker for the same company on a flexible part-time temporary basis (16 to 42 hour; their terms) for the last 13 years, despite asking to be taken on as a permanent member of staff! I know I’ve been treated less favourably that permanent staff members, which has been soul destroying. Now at the age of 65 and nearing retirement, they have decided to advertised my job as a full-time permanent position. So close to my retirement, I am left feeling exploited and angry that the law does not protect workers from such practices.

  11. Avatar
    Amanda Speedie 5 Jun 2019 at 4:03 pm #

    I have been working (via agency) for the same organisation for over two years, and was dismissed on the spot last week (I refused to provide a urine sample in the workplace but I did offer to provide one at my GP surgery). I have called ACAS and the CAB, and have submitted a Formal Appeal to my agency for unfair treatment and loss of earnings. I have also reported the organisation online to the Health & Safety Executive for not allowing rest breaks. Employers seem to be able to do just as they please. Agency workers don’t have rights, other than discrimination, so that’s the only one that we may try pursuing perhaps, certainly via our MPS? I don’t expect any satisfaction other than having made my point very loudly.

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