Agency workers

Those who are working as agency workers for a temporary work agency are protected by the Agency Workers Regulations 2010 (the ‘AWR’). A temporary work agency is one which provides employees to employers on a temporary hire basis (not on a permanent basis).

The definition of an ‘agency worker’ will not extend to those who are self employed, but outside of that category, the description is quite wide. It applies to someone who has a contract with a temporary work agency, or a contract to carry out work and/or services for the employer who is hiring that person under the direction of the temporary work agency – whether or not that person is paid by more than one agency, or through a different company.

Agency workers’ rights

From the very beginning of the contract, an agency worker has the right not to be treated any less favourably than another employee in the hiring employer’s workplace where the employee is in a comparable position. An example of being treated less favourably might be where an agency worker is not given access to facilities like the canteen. An agency worker also has the right to be offered the same chance to be notified about job opportunities with the hiring employer as the other employees at that company.

After a period of 12 weeks, addition rights arise, including the right to be treated in the same way – in terms of the basic working and employment conditions (for example, pay, rest breaks, night work etc) – as if the agency worker had been recruited to carry out the same role as an employee or worker, directly by the hiring employer. ‘Pay’ does not include anything that is not related to the work the agency worker is doing. So, for example, pay will include salary and bonuses, but won’t include maternity or redundancy pay.

The period of 12 weeks must be a continuous one, during which an agency worker should not start a new assignment with a different employer hirer, begin a different role with the same employer hirer, or have a break of more than six weeks between jobs with the same employer hirer. If any of these events occurs then the continuity of employment is ended and the 12 weeks rights do not arise until 12 weeks have been worked. An agency worker does not have to work every day during those 12 weeks – for example a worker who is working two days a week for 12 weeks will have continuity.

Whilst the AWR does not require a ‘comparator’ where an employee wants to bring a claim, being able to establish one is an easy way to establish an entitlement to something. It is also a beneficial tool for an employer when defending a claim. The comparator will be someone who is an employee or worker at the same place of work as the agency worker, doing broadly similar work to the agency work (looking at skill, qualifications etc), working for and being supervised by the employer hirer.

Where a pregnancy-related reason or maternity, paternity or adoption leave means that an agency worker who has taken on a role cannot carry on with it, the agency worker will be taken to have continued to work in that time with respect to continuous service. Although there is no entitlement to Contractual Maternity Pay, this deemed continuous service can influence the way Statutory Maternity Pay is worked out for the agency worker – where achieving 12 weeks service boosts the worker to a better pay rate.

Taking action

Where any agency worker feels their rights are not being respected they can first try and resolve the issue by speaking directly to the employer hirer or to the agency. Alternatively a written statement can be requested from an agency (or, where the problem is with respect to collective facilities, amenities or job vacancies, to the employer hirer). This should set out the terms on which the employer hirer’s directly employed workers are employed, as well as what has been taken into account when deciding the terms on which the agency worker is employed. This statement should include details of a comparator in order to show that the treatment of the agency worker is right.

Whoever receives the request for the written statement – whether it is the agency or the employer hirer – there is a deadline of within 28 days to respond.

If the issue is not resolved in this way, an agency worker can:

Claim against the agency where there has been a detrimental effect suffered by the agency worker as a result of providing evidence, enforcing or refusing to forgo a right, making allegations, or bringing proceedings under, or in connection with, the AWR. This claim can be made at any time, whether the 12 weeks have passed or not, and can also be made against the employer hirer.

After the 12 week period has passed, an agency worker can claim against the agency or employee hirer for a breach of the agency worker’s right to be treated equally.

Claim against the hirer if the agency worker has not been provided with the right to use to collective facilities and amenities and job vacancies.

Although an agency worker who also falls into the definition of employee can also claim for unfair dismissal (agency workers cannot claim for this), in most cases agency workers will not constitute employees. It can be something of a grey area as to whether a worker is an employee and may depend on the circumstances of employment. An agency worker who is not an employee may find that where an employer hirer ends their employment, this could constitute detriment if it was because the agency worker was attempting to assert the rights under the AWR.

Claims needs to be made to an Employment Tribunal within three months of the day of the dismissal, or the conduct that caused detriment or constituted a breach.  A Tribunal can award unlimited compensation based on the financial loss an agency worker has actually suffered, as long as it is just and equitable to do so and constitutes no less than two weeks salary. A Tribunal can also make a declaration or a recommendation that action is taken to remedy the situation. In some cases, compensation for injured feelings can be made.