AA Legal Documents
Law guide

Agency workers

Contents

As an agency worker, it's important to know your rights and the rules about the way agencies should treat you. The rights that agency workers have depend on whether they are categorised as employees or workers. For more information, see our 'Employees, workers and the self-employed' section.

What is an agency worker?

Agency workers work through an agency which finds them jobs. The firm that the agency worker will be working at pays a fee to the agency, and the agency pays the worker's wages.

There are several advantages to being an agency worker – you can:

  • Use it as a stepping stone to the job you want
  • Use it as a way if entering or re-entering the job market
  • Use it to work more flexibly to help balance domestic responsibilities
  • Move jobs easily and with little or no notice
  • Try out different kinds of work
As an agency worker, you are automatically covered by the National Minimum Wage, working time legislation and health and safety and social security provisions. However, because of the flexibility of agency work and the variation of the terms of the arrangements between the agency worker, the agency and the firm that the worker is working at, determining what their status is, i.e. whether the agency worker is an employee or worker, can be a complex exercise. Every case needs to be examined individually.

There are important differences between temporary agency workers, and those who are hired on fixed-term contracts. If you're an agency worker, your contract is normally with the agency, which must pay you even if the hiring company hasn't paid them. However, if you sign a fixed-term contract with the hiring company, the agency isn't responsible for paying you, and you have different rights. Make sure you know what kind of contract you're signing so that you're clear about your employment status.

Your rights as an agency worker

Agency workers are usually considered to be 'workers', not 'employees'. Workers' main rights are:

  • Paid holiday, rest breaks and limits on working time
  • No unlawful deductions from wages
  • The National Minimum Wage
  • Not to be discriminated against under any of the equality legislation
If you're an agency worker, you have the right to maternity or paternity pay, but not maternity or paternity leave. You can get Statutory Sick Pay if you've worked for the same agency for more than three months. HM Revenue and Customs (HMRC) can help decide what you are entitled to.

Agency workers can sometimes (in very limited circumstances) be classed as 'employees'; for example, where an agency worker has worked for the same firm for many years and has been treated in the same way as an employee by that firm. If there's a dispute about whether or not you're an 'employee', an Employment Tribunal (Industrial Tribunal in Northern Ireland) will decide on the facts of the case. There are various European and domestic initiatives aimed at clarifying the uncertain position of agency workers, and ensuring they are afforded the same protections as other employees.

Agency workers are treated the same as other employees or workers for tax (PAYE) and National Insurance purposes, but there are special rules on how to work out their status.

Rights granted under the Agency Workers Regulations

The Agency Workers Regulations came into force on 1 October 2011 in England, Wales and Scotland. They affect all organisations that supply or hire temporary agency workers, who are under the 'direction and supervision' of a hirer.

The regulations give new rights to agency workers that can be enforced at an employment tribunal against their agency and/or the hirer.

Day one rights

Access to facilities and amenities

From the first day of an assignment, you will be entitled to the same rights of access to your hirer's collective facilities or amenities as are enjoyed by a comparable worker working at the same location (or, if there is no such person, at another location used by your hirer). A 'comparable worker' is someone employed directly by your hirer who does broadly the same work or has broadly the same skills and qualifications as you.

Collective facilities or amenities include those provided by your hirer to their workforce as a whole or to particular groups. Examples might include staff canteens, common rooms, car parks, toilet/shower facilities, transport services or workplace crèches.

The facilities should be made available even if they are shared with another business and can extend to facilities that are based at another site occupied by the hirer.

This does not mean that you will get priority over other staff and does not include off-site facilities provided by a third party, such as subsidised gym membership.

Hirers can refuse access to facilities only if they can 'objectively justify' their decision by establishing it as both reasonable and proportional. It is unlikely hirers will be able to justify such decisions solely on grounds of cost.

Information on job vacancies

You will also have a right to access information on job vacancies with your hirer. However, this is limited to those vacancies that would be available to a comparable worker working at the same site as you, so not every vacancy must be communicated. However, such communication should be made simultaneously to you and the comparable worker.

This right will not affect a hirer's ability to control:

  • The qualifying criteria for the vacancy (such as qualifications or time in service with the business).
  • How applications are treated (there is no right for you to have equal or preferential treatment).
This right will not apply if there is a genuine recruitment freeze, such as prior to a restructuring and/or redeployment of staff.

Week 12 rights

Equal treatment rights

If you work for a hirer in the same job for more than 12 calendar weeks, you will qualify to receive the same 'basic terms and conditions of employment' as a comparable worker.

The regulations state that these are terms relating to pay, duration of working time, night work, rest periods, annual leave and, for pregnant agency workers, paid time off for antenatal appointments.

The hirer should undertake a risk assessment in relation to a pregnant agency worker just as it should do for its pregnant employees.

Pay includes:

  • Basic pay
  • Overtime pay
  • Bonuses and commission payments directly related to the amount or quality of work
  • Additional pay for working unsocial hours or for undertaking hazardous duties
  • Holiday pay
  • Vouchers or stamps that have a monetary value (e.g. luncheon vouchers)
For example, if you are paid less than a comparable permanent worker, then after you have worked for 12 weeks you will be entitled to the same rate of pay.

Before you qualify for these rights, your hirer should provide the agency with details of the basic terms and conditions of employment of either a comparable permanent worker (if there is one), or (if there isn't) the terms you can expected to receive as if you were employed directly by them.

This should include information on:

  • The pay you can expect to receive
  • Any entitlement to additional pay for overtime, working unsocial hours or for undertaking hazardous duties and when or how you will qualify for it
  • Bonus schemes and how performance is appraised
  • Annual pay increases (e.g. when they take effect)
  • Offered vouchers or stamps
  • The annual leave allowance
Note that the regulations exclude entitlement to certain terms and conditions, such as:

  • Enhanced sickness, redundancy, maternity, paternity and adoption leave payments, i.e. more than the statutory minimum
  • Occupational pension payments
  • Benefits in kind
  • Payments which require staff to have worked for a minimum period (over 12 weeks) before qualifying
  • Bonuses which are not directly linked to performance, i.e. bonuses linked to loyalty or long service such as flat-rate bonuses paid to encourage loyalty
Your right to information

Day one rights

You should write to your hirer requesting information regarding your 'day one rights' before starting a claim at an employment tribunal for breach of the regulations.

Your hirer has 28 days from receipt of the request to respond in writing with relevant information regarding the rights of a comparable employee and, if applicable, the reasons for treating you differently.

Week 12 rights

If you believe that you are not receiving the equal treatment rights, you should write to the agency requesting details of the basic terms and conditions of employment that you can expect to receive.

The request cannot be made before you become entitled to the equal treatment rights and must be made before starting a claim at an employment tribunal.

The agency has 28 days from receipt of the request to respond in writing with relevant information regarding your hirer's basic terms and conditions of employment (based on the rights of any comparable employee); any relevant information or factors taken into account when determining them (such as pay scales); and the reasons for any difference in your treatment.

If you have not received this within 30 days of your request, you can request the same information from the hirer who will also then have 28 days from receipt to provide a written response.

Calculating the 12-week qualifying period

Time worked by you for a hirer in the same job before 1 October 2011 will not count towards the 12-calendar-week qualifying period.

A calendar week means 7 days, starting with the first day of an assignment. It does not matter how many hours you work during a calendar week. Therefore, if you start on a Wednesday and work for 2 hours that day and no more up to and including the following Tuesday, you will have accrued one calendar week.

The regulations provide for situations when the number of calendar weeks will pause, continue to accrue, or restart, whilst you are accruing your 12-week qualifying period.

The number of calendar weeks will pause if there is a break in the assignment or between assignments:

  • Due to any reason and for no more than 6 calendar weeks, after which you return to the same job with the same hirer
  • For up to a maximum of 28 weeks due to you suffering sickness or injury (unless related to pregnancy, maternity or childbirth)
  • For up to a maximum of 28 weeks due to you performing jury service
  • Due to you taking any entitled leave, such as holiday
  • Caused by a regular and planned shutdown by the hirer of their workplace - such as over Christmas and New Year
  • Caused by strike action, lockout or other industrial action at the hirer's workplace
The number of calendar weeks will continue to run if there is a break in the assignment:

  • Due to pregnancy, childbirth or maternity-related absence, whilst you are pregnant and for up to 26 weeks after childbirth or the date you return to work if earlier. This will include time taken off work for antenatal appointments or absence due to a pregnancy related sickness.
  • Due to you being on maternity, adoption or paternity leave
The number of calendar weeks will restart if you:

  • Begin a new assignment with a new hirer
  • Begin a new job with the same hirer that is 'substantially different' from the previous one and the hirer has given written notice to the agency of the new role and the job requirements and the agency has informed you of this and that their qualifying period will restart.
  • Have a break in the assignment or between assignments of more than 6 calendar weeks.
  • Are performing jury service or are absent due to sickness or injury (other than due to pregnancy, maternity or childbirth) for a period of more than 28 weeks.
What 'substantially different' means will depend on the circumstances, but it may include, though is not limited to, differences in:

  • The required skills
  • Pay
  • Workplace location
  • Working hours
  • Use of equipment
Who is excluded from the regulations?

Generally, workers who are not under the direction and supervision of a hirer are excluded from the regulations. This may include:

  • Workers who are introduced through an employment agency but are subsequently employed directly (whether permanently or for a fixed period) or who are genuinely self-employed, have a business relationship with the hirer (the hirer is their client or customer) and are not under the hirer's direction and supervision - such as contractors or consultants including those that trade through an umbrella company
  • Workers who work temporarily but are recruited directly by (and work solely for) the hirer
  • Workers on secondment
  • Circumstances where a hirer has contracted out services performed on its premises to another business (such as catering) and that other business manages its staff
In the event of a dispute regarding whether a worker is excluded from the rights granted by the regulations, an employment tribunal will look at the reality of the working relationship and the true intentions of the parties and will not solely rely on the terms of any agreements made between them.

Consequences of failing to comply with the regulations

Contracting out or avoiding the regulations

Hirers and agencies cannot require you to sign agreements which exclude your rights under the regulations.

Furthermore, the regulations contain anti-avoidance provisions which prevent a hirer or agency from implementing structures or practices which are intentionally created to deprive you from qualifying for the new rights.

Types of claims

There are a number of potential employment tribunal claims that can be made against a hirer and/or an agency, which must be brought by you within 3 months of an alleged breach of the regulations.

A hirer will be held liable for failing to provide for the 'day one rights' and, depending on the circumstances, may be jointly liable with the agency if your equal treatment rights have been breached.

You are also able to make a claim if you have been subjected to a detriment (such as early termination of an assignment) by the hirer or agency because you have (or are believed or suspected to have):

  • Brought proceedings under the regulations
  • Given evidence or information in connection with another agency worker's claim under the regulations
  • Made allegations of a breach of the regulations
  • Asserted or refused to forego your rights under the regulations.
A hirer or agency will also be liable if you have suffered a detriment because they believed or suspected that you intended to do any of the above.

Liability

An employment tribunal can order the hirer and/or the agency to pay compensation to you if your rights under the regulations have been breached.

There is no limit to the amount that can be awarded, although generally it will be limited to actual financial loss or a reasonable amount if the loss cannot be quantified (such as if access to facilities are refused).

However, employment tribunals must award a minimum of 2 weeks' pay.

Awards of up to £5,000 can be made against a hirer or agency if they have intentionally tried to circumvent the regulations.

What to do if your agency isn't giving you work

It's up to agencies to decide who they put forward for work, and agencies tend to have more people on their books than they usually need in order to cover peaks in demand. Unless you have an agreement with your agency where they guarantee to find you work, it might be difficult to force them to give you work, although it's worth investigating whether your agency is unlawfully discriminating against you, or breaching your statutory rights. Raise the matter with your agency; if the reason is a bad reference from an employer, they should explain this and let you have your say. If the reason is that there is not enough demand for the sort of work you want, you might consider broadening the range of work that you are prepared to do. If this fails, try joining another agency – there's no limit to the number you can register with.

The rules governing agencies

Agencies are subject to a number of regulations; they:

  • Can't charge you a fee
  • Can't make you use fee-paying services (e.g. CV writing) as a requirement for finding you work
  • Can't stop you from taking a permanent job with a company where you temped, and there are limits on the fees they can charge the company (sometimes called 'temp to perm' fees)
  • Have to give you written terms and conditions
  • Can't stop you registering with other agencies
Finally, if they're an 'employment business' – a temp agency - they must pay you, even if they haven't been paid by the firm you're working for.

What to do if your agency breaks the rules

Employment agencies can be fined and banned from operating for up to 10 years by an Employment Tribunal (Industrial Tribunal in Northern Ireland), if they don't meet proper standards.

If you think your agency has broken any of the rules, contact the Employment Agency Standards' Pay and Work Rights helpline on 0800 917 2368 (8.00 am to 8.00 pm Monday to Friday). The EAS Inspectorate investigates every complaint it receives.

If the agency has breached the terms of your contract, you can take action yourself through the courts. If the agency makes an unlawful deduction from your pay, you can complain to an Employment Tribunal (Industrial Tribunal in Northern Ireland).