Agency worker rights

There are 865,000 agency workers (or temps) in the UK. This figure amounts to a 30% increase from 2011. The source for this is the Resolution Foundation 2016.

The Agency Workers Regulations 2010 (some refer to this incorrectly as the “agency work regulations”) provide workers the right to equal treatment for basic employment and working conditions. That’s after 12 weeks.

You should also remember that you’ll classify them as workers, which is different to employees.

How to identify agency workers

These are individuals who work for you but have an employment agency contract—this means they’re an agency worker.

The following also indicates that someone’s employment status:

• They’re provided by an agency to work with you on a temporary basis.
• You manage their work.
• They’re not self-employed.

When is someone not an agency worker?

There are a specific set of reasons:

• Have found work through an agency but are self-employed.
• Are on a managed service contract where the agency supplies a service (like cleaning) to you and manages the worker.
• Work for an in-house temporary staffing bank, where you employ temporary workers directly and they only work for you.
• Have found direct employment with you through an agency or by themselves.
• Are on loan to you from another business.

The rights of an agency worker

First off, do agency workers have rights? Of course. Employment agencies responsibilities towards them include:

• Finding work for free, but the agency can charge for services like CV writing.
• Providing written terms of employment.
• Making available relevant details (e.g. the start date) with a job offer.
• Communicating changes to terms and conditions.

But do agency works have rights from their first day of work? Yes. These are as follows:

• The use of shared areas and facilities.
• Information about job vacancies, but this doesn’t mean they’ll be suitable to apply for them.

And what about agency worker rights after 12 weeks? Once they’ve cleared that period, they can claim equal treatment with employees. This includes considerations on agency workers’ pay rights:

• The same pay as your permanent employees doing the same job.
• Paid annual leave.
• Time off with pay for ante-natal appointments.
• Bonuses of commission directly attributed to performance.

Holiday entitlement for agency staff

They’re able to take the minimum statutory 5.6 weeks of holiday (with pay).

After passing their 12-week qualifying period, they can claim pay and any other extra leave your business offers over the 5.6 weeks.

You can add this to the agency worker’s holiday entitlement, add it to their hourly-daily rate, or pay it at the end of their working period with you.

However, remember that any agency workers with a pay between assignments contract doesn’t have the right to claim the same holiday pay.

Maximum weekly hours for agency workers

After agency workers join you, they’re not obligated to work more than an average of 48 hours per week, under The Working Time Regulations 1998.

They can sign an agreement with their agency to waive this right. You can’t insist that they work longer shifts than comparable employees.

Sunday working for agency workers

They have to work on Sundays if it’s in their contract. You can’t make them work on a Sunday unless they’ve agreed to this in writing.

How to calculate agency workers 12-week qualifying period

You should start counting this period from their first day of work. The following will pause the clock of the 12-week period:

• A break of six weeks or less.
• Sick leave for up to 28 weeks.
• Annual leave.
• Jury service for up to 28 weeks.
• A planned shutdown (e.g. closedown for Christmas) or industrial action.

Exceptions to equal treatment

If agency workers have signed a pay between assignments contract with their agency, they’ll be receive pay even when not in work.

As a result, they can’t claim equal pay, but their other rights will remain the same.

The Employment Appeal Tribunal case, Coles v Ministry of Defence (2015) found that agency workers are do have entitlement to access information about job vacancies. But permanent employees should receive special treatment to fill these positions.

It’s critical to be clear about the start and end of the 12 week qualifying period for them. This information should be available at your fingertips in a safe place.

The BrightHR Employee Hub stores your employee and worker records securely, with ease of access via our cloud-based HR software. 

You’ll also get notifications of important dates including alerts about the 12-week period.

Need our help?

If you have agency workers and need help with your HR activities regarding them, get in touch and we’ll give you a helping hand: 0800 783 2806.