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Agency workers – a quick guide to your rights

Redmans is an award-winning firm of specialist employment law solicitors, acting for UK employees and senior executives. We are one of the only law firms in the UK that specialises solely in employment law and we have a very high success rate (usually without the requirement to issue an Employment Tribunal claim).

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If you’re an agency worker it is important to know your rights – our specialist employment lawyers have therefore prepared a brief guide on some questions you may have in these circumstances

What is an agency worker?

An agency worker is an individual with a special working arrangement, who has a contract with an agency and where you work temporarily for an employer.

Under the Agency Workers Regulations 2010, an agency worker is an ‘individual supplied by a temporary work agency to work temporarily under the supervision and direction of a hirer’.

Agency Workers Regulations

The Agency Workers Regulations 2010 aims to prevent discrimination of people who work for employment agencies, by asserting that agency workers should be treated no less favourably in pay and working conditions as their comparable colleagues who undertake similar work.

On 1 October 2011, a new legislation came into force giving agency workers the entitlement to the same basic employment and working conditions as if they had been recruited directly, and/if on completion of a qualifying period of 12 weeks in the same job.

From day one of an assignment, temporary agency workers have a right to:

  • equal access to facilities provided by the hirer (such as canteens, staff rooms, toilet and shower facilities, car parking and transport services); and
  • information and opportunities on vacancies in the company’s workplace.

After 12 weeks (the ‘qualifying period’) in the same role with the same company, temporary agency workers have the right to:

  • equal equal treatment entitlements relating to pay and other basic working conditions (annual leave, rest breaks etc).
  • improved pregnancy rights.

What information must your agency give you

As of 6 April 2020, agency workers have had the right to a written statement of terms under section 1 of the Employment Rights Act 1996. This must be given on the first day of their engagement.

Your agency must give you key information document and a contract (written terms of engagement).

The key information document must give information about what you will be paid and any deductions.

The following information must be included:

  • the minimum rate of pay you can expect
  • an itemised payslip giving an estimate of your take home pay after things like National Insurance, Income Tax deductions
  • if you have any fees to pay
  • any benefits you are entitled to

The contract or written terms of engagement should include:

  • whether you’re employed under a contract for services or a contract of employment
  • your pay
  • your notice period
  • your holiday entitlement

An agency cannot change your terms and conditions without notifying you. If you agree to any changes, you must be given a new document and contract with the date and details of the changes.

Your rights as an agency worker

From the day you start work you have a worker’s employment rights

All agency workers have the right to:

  • be paid the National Minimum Wage
  • be given payslips
  • not have unlawful deductions from wages
  • the right not to be discriminated
  • have a limit on the hours of your working week (with some exceptions)
  • have paid holidays
  • be accompanied at a grievance or disciplinary hearing
  • not to be dismissed for whistleblowing
  • work in a safe workplace
  • be able to take certain claims to an employment tribunal

You acquire equivalent rights to permanent staff once you’ve worked in the same job for 12 weeks continuously

  • Additional rights (You have extra rights after 12 weeks in the same job with the same employer. E.g.; the same basic pay and working conditions as permanent employees and if you’re pregnant, to take paid time off for ante-natal appointments).

Calculating the 12-week qualifying period

The time worked by you for a company in the same job before 1 October 2011 will not count towards the 12-calender week qualifying period. A calendar week means 7 days starting from the first day of the assignment (regardless of how many hours you work during that week).

The regulations provide for situations when the number of calendar weeks will pause, continue to accrue, or reset, 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 company
  • For up to a maximum of 28 weeks due to you suffering sickness or injury (unless this is related to pregnancy, maternity)
  • Entitled leave, such as holiday
  • For up to a maximum of 28 weeks due to jury service
  • Caused by strike action or industrial action at the company’s workplace

The number of calendar weeks will continue to run if there is a break in the assignment:

  • Due to maternity, paternity, pregnancy and adoption leave

The number of calendar weeks will reset if you:

  • Begin a new assignment with a new company
  • Begin a new job with the same company that is ‘substantially different’ from the previous one (providing the company has given written notice to the agency of the new role and the agency has informed you of this and that the qualifying period will reset)
  • Have a break in the assignment or between assignments of 6 calendar weeks or more
  • Are performing jury service or are absent due to sickness or injury (other than due to pregnancy, maternity or childbirth) for a period 28 weeks or more

Can an Agency charge you a fee?

An employment agency must not charge a fee to register you with them or to find you assignments. (except for entertainment agencies, who can charge you for finding you work)

Agencies may charge you a fee for other services such as:

  • CV writing
  • Training courses
  • Transport and/or accommodation
  • DBS checks

If any agency offers you services it must give you full written details of the fee and conditions before charging you (including your right to cancel and notice period).

If the agency does charge a fee for these other services, they must not treat you unfairly, pressurise you or make you use these services as a condition for finding you work.

You can cancel these services without a penalty but must give the required notice.

What are the advantages and disadvantages of being an agency worker

The advantages of being an agency worker can include.

  • Different types of work
  • Learning new skills and gaining valuable work experience
  • Flexibility to work at times that suit and balance personal needs
  • Move jobs with little or no notice
  • Possibility of permanent employment in the future

The disadvantages of being an agency worker can include.

  • Variations in the amount of hours available each week.
  • Change in pay each week
  • Little or no notice of when the assignment ends
  • Periods where little or no work is available.
  • Agency is not obliged to offer work in the future

Are agency workers protected from discrimination?

Under the Equality Act 2010, you have the right not to be treated less favourably than other workers, (by the agency of company) on the grounds of age, disability, sex, gender, disability, race or religion, pregnancy/maternity or marriage/civil partnership.

The agency or company is liable to compensate the worker for any unlawful discrimination (though, not all claims are guaranteed to succeed).

Resolving issues that may arise as an agency worker

If you are an agency worker, your contract is with the employment agency. They place you with the company for a temporary period of time.

If you have a problem with the agency, it is a good idea to resolve the issue informally in the first instance. If you have tried this or it is not possible to do so, you can make a formal complaint to the agency as per their complaints procedure. The complaint should be made in writing.

If the agency is a member of a trade body, you can consider making a formal complaint to them. (If the agency is a member of the Recruitment and Employment Confederation (REC), you could make a complaint to them).

If the agency or company have refused you a right under the Agency Workers Regulations, or you have been treated unfairly, you can make a claim to the employment tribunal.

If you are classed as an employee and are dismissed for asserting a right, this automatically counts as unfair dismissal. If you are not receiving the national minimum wage you can report this to HMRC or make a claim to the employment tribunal.

Can I be dismissed as an agency worker?

There are no specific rules for dismissing agency workers. The same rules that apply to dismissing employees, apply to agency workers, depending on their status.

An agency worker can claim unfair dismissal only if they are an employee and they meet the qualifying requirements (automatic unfair dismissal; if the reason for dismissal is one of the grounds listed in reg. 17 (3) of the Regulations- breach of the Regulations).

Most agency workers are unable to claim unfair dismissal or redundancy in the Tribunal. This is due to the fact that agency workers and not being considered as being an ‘employee’.

Making a claim as an agency worker

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

The company will be held liable for failing to provide the ‘day one rights’ and depending on the circumstances, the agency may also be jointly liable if your equal treatment rights have been breached.

An employment tribunal can order the company or agency to pay compensation to you if your rights under the regulations have been breached. Although there is no limit on the amount that can be awarded, generally it will be actual financial loss of the workers earnings.

Employment Tribunal claims involving agency workers

We have included below some examples of Employment Tribunal cases that have involved agency workers:

  • Mr DJ Parnall v Aluminium Castings Ltd: 2420695/2017 – in this case the Employment Tribunal awarded the Claimant, an agency worker, £2,000 in compensation after he was subjected to detriments because he had ‘blown the whistle’ (Employment Tribunal decision)
  • Mr A Hay v ERM Certification and Verification Services Ltd (T/a ERM CVS LTD): 2203460/2020 – in this case the Employment Tribunal found that the Claimant had been subjected to a detriment because he had ‘blown the whistle’ (complaining about a breach of agency worker rights), awarding the Claimant £2,800 in compensation (Employment Tribunal decision)
  • Halina Dorola Krupa v B & M Retail Ltd and others: 2400660/2016 – in this case the Employment Tribunal awarded the Claimant £10,171.52 after she was subjected to race discrimination whilst working as an agency worker (Employment Tribunal decision)

Other useful sources of information regarding agency worker rights

You can find more information relating to your rights at work using the following sources:

Call Redmans today to discuss your employment law matter

Call Redmans on 020 3397 3603 or email us at enquiries@redmans.co.uk to discuss your employment law matter.

Alternatively, you can call Chris Hadrill, the partner responsible for the employment department, on 020 3397 3601 or email him at chadrill@redmans.co.uk.

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