There are a number of employee/employer relationships which are now different from the traditional 9-5 job. A person's employment status will determine their rights and their employer's responsibilities.
An agency worker is supplied by a temporary work agency to a client/hirer to work normally for a temporary period. Agency workers may be used to cover a period of maternity leave, or to carry out work for a particular task.
- Agency workers are entitled to certain employment rights such as National Minimum Wage.
- Employers should be aware of the Agency Worker Regulations.
- Agency staff are classed as workers rather than employees.
- The Agency workers directive gives equal treatment to those who have been with the hirer for 12 continuous weeks in a given job.
- To establish the rights in the regulations the agency worker needs to be able to identify a comparator.
Agency workers are classed as "workers" rather than as employees. All workers, including agency workers, are entitled to certain rights which include:
- paid annual leave
- rest breaks and limits on working time
- the National Minimum Wage
- no unlawful deductions from wages
- discrimination rights under the Equality Act 2010
- health and safety at work.
The Agency workers regulations give agency workers the entitlement to the same or no less favourable treatment as comparable employees with respect to basic employment and working conditions, if and when they complete a qualifying period of 12 weeks in a particular job.
The regulations cover agency workers supplied by a temporary work agency to a hirer. This includes most agency workers that people refer to as 'temps'. The regulations also cover agency workers supplied via intermediaries. To establish the rights in these regulations, the agency worker needs to be able to identify a comparator.
The regulations don't cover the genuinely self-employed, individuals working through their own limited liability company, or individuals working on managed service contracts.
Day one and 12 week rights for agency workers
From Day 1 of their employment, an agency worker will be entitled to:
- the same access to facilities such as staff canteens, childcare and transport as a comparable employee of the hirer.
- be informed about job vacancies (however this does not mean they are eligible to apply for vacancies).
After a 12-week qualifying period, an agency worker will be entitled to the same basic conditions of employment as if they had been directly employed by the hirer on day one of the assignment, specifically:
- pay - including any fee, bonus, commission, or holiday pay relating to the assignment. It does not include redundancy pay, contractual sick pay, and maternity, paternity or adoption pay
- working time rights - for example, including any annual leave above what is required by law.
Agency Workers (regardless of their employment status) will also be entitled to paid time off to attend ante-natal appointments during their working hours.
If an agency worker is working on more than one assignment the agency worker will have two or more assignments that need to accrue separately. In other words if an agency worker has assignment A and assignment B, they would need to work for 12 weeks on assignment A before their rights apply to assignment A, and 12 weeks on assignment B before their rights apply to assignment B.
The Regulations require that a new assignment would need to comprise 'substantively different work or duties' for the qualifying period to start again.
Comparative employee and Swedish Derogation
The Comparative employee
The Regulations aim to ensure an agency worker is engaged on the same relevant terms and conditions as a "comparable employee". In other words, "what terms and conditions would the agency worker have got if they had been directly recruited into the role?"
An employee is a 'comparable employee' if at the time of an alleged breach of the regulations:
- both employee and agency worker are working for and under the supervision and direction of the hirer
- both employee and agency worker are engaged in the same or broadly similar work (this could include an examination of qualification and skills)
- the employee works, or is based, at the same establishment as the agency worker (the employee can work, or be based, at a different establishment but only where such an employee cannot be found working, or based, at the same establishment).
The Agency Workers Directive came into force on 1 October 2011 and the main principle of the Directive is to give equal treatment to someone who has been with the hirer for 12 continuous weeks in a given job. The agency worker will be entitled to at least the basic working and employment conditions such as pay and working time which are equal to the hirer's own employees.
The Swedish Derogation or pay between assignments exemption
This is when a Temporary Work Agency can offer an agency worker a permanent contract of employment and pay the agency worker between assignments. It would mean that after 12 weeks with a hirer the agency worker will not be entitled to the same pay as if they had been recruited directly. The agency worker who is covered by this exemption will still be entitled to other new provisions under the regulations, for example annual leave after 12 weeks, rest breaks etc.