A guide to agency worker rights

The regulations apply to:

• Agency workers – defined as an individual supplied by an agency to work temporarily for a hirer
• An agency – defined as a person engaged in an economic activity supplying agency workers, either directly or indirectly, to work temporarily for and under the direction and supervision of a hirer
• Hirers – defined as a person engaged in an economic activity to whom agency workers are supplied to work temporarily under their supervision.

The regulations do not apply to the self-employed, in-house temporary staffing, banks and individuals working under a managed service contract (when a company provides a specific service to a customer, such as catering or cleaning).

From their first day on the job, agency workers are entitled to access facilities and amenities and to be informed about relevant job vacancies in the organisation.

Facilities include canteens, childcare facilities (such as workplace crèches), transport services (such as transport between sites, but not company car allowances or season ticket loans), toilets/shower facilities, staff common rooms, waiting rooms, parent and baby rooms, prayer rooms, food and drinks machines.

After 12 weeks on the job, agency staff are entitled to the same basic working and employment conditions as other directly recruited staff.

These rights are limited to pay which means any sums related to the work done by the agency worker and includes basic pay, shift allowances, any fee, bonus or commission, holiday pay and vouchers or stamps which have monetary value, the duration of working time (e.g. if working hours are limited to a maximum of 48 a week), night work, rest periods, rest breaks and annual leave.

Pay does not include occupational sick pay, occupational maternity, paternity and adoption pay, redundancy or incentive and bonus payments which are not related to the work the agency worker does and expenses.

The right to equal treatment in relation to the duration of working time does not mean that an agency worker is entitled to the same number of contractual hours as directly recruited staff.

Pregnant agency workers who have completed the 12 week qualifying period are entitled to paid time off for ante-natal appointments.

The right to equal pay for agency workers does not apply if the agency worker is a permanent employee of the agency. However, this provision will be repealed in April 2020.

The 12 week qualifying period is triggered when an agency worker works in the same job with the same hirer for 12 continuous weeks (any period of seven days starting with the first day of an assignment).

Workers can include weeks when they only work for a few hours a week in the same assignment.

An agency worker will be treated as being in the same role unless the role is substantially different from the previous one.

The same hirer includes where an agency worker works across multiple sites. A new hirer must be a separate legal entity such as when an agency worker works for different companies within a larger group.

The government guidance suggests that the 12 week period is best considered as if it was time on a stopwatch. Depending on the reason for the break, the clock may be stopped and have to be reset or paused and resumed from the same point. In some circumstances the clock still keeps running.

Reset to zero

The clock stops and has to be re-set to zero when:

• The agency worker begins a new assignment with a new hirer;
• The agency worker stays with the same hirer but in a substantively different role which the agency has put in writing; and
• There is a break of more than 6 weeks for any other reason not covered below.

So, for example, where an agency worker works for one hirer for four weeks and then starts work with the new hirer the four weeks does not count and the clock is reset with the new hirer.

Resumed

The clock is paused and resumes from the same point where:

• There is a break for any reason if it is no more than six calendar weeks and the agency worker returns to the same role with the same hirer;
• There is a break of up to 28 weeks because the agency worker is incapable of work because of sickness or injury;
• To take leave to which the worker is entitled e.g. annual leave;
• To perform jury service;
• There is a break caused by a planned shutdown of the workplace by the hirer (for example at Christmas); and
• There is a break caused by industrial action at the hirer’s establishment.

So, for example, where an agency worker works for a hirer for four weeks and then goes on holiday for two weeks and returns to work for the same hirer in the same job for eight weeks the clock resumes. The
four weeks and eight weeks are added together. In that case the agency worker has the required twelve weeks.

Keeps running

Breaks where the clock continues to run include:

• Breaks due to pregnancy, childbirth or maternity which take place during pregnancy and up to 26 weeks after childbirth; and
• Any breaks due to maternity leave, adoption leave or paternity leave.

In each of these cases the clock will continue to tick for the intended duration of the assignment so that all the weeks even those during the break count towards the twelve weeks.

Yes, there is nothing in the regulations to prevent hirers from releasing an agency worker after, say, 11 weeks.

However, the regulations do also include some anti-avoidance provisions. These apply where an agency worker is prevented from completing the 12 week qualifying period because of the way the work assignments have been structured.

In that case, a tribunal may decide that this is done with the intention of depriving the agency worker of equal treatment. If so, the agency worker will be deemed to have completed the 12 week qualifying period and entitled to the right to equal treatment. This could also result in a tribunal making an additional award to the agency worker of up to £5,000.

An agency worker can make a request for relevant information from the agency who has 30 days to respond. If the agency does not respond, the agency worker can make a request to the hirer who has 28 days to respond. A tribunal can draw an inference if an agency or hirer does not respond.

The agency worker can also bring a claim in the employment tribunal. A tribunal can make a declaration as to the agency worker’s rights and order unlimited compensation. No award can be made for injury to feelings.

Generally, an agency will be liable for any failure to provide equal treatment after 12 weeks. However, an agency can defend a claim if it can show that it took reasonable steps to obtain information from the hirer about basic working conditions and assessed the position of the comparator.

A claim for equal treatment after 12 weeks can be brought against both the agency and the hirer where  responsibility for the breach is not clear.

A tribunal claim must be brought within three months less one day of the breach. Early conciliation applies which means that ACAS must be contacted before the tribunal time limit expires. An early conciliation form can be completed at www.acas.org.uk.