Andrew James looks at the protections afforded to agency workers if either the agency or the hirer fail to uphold them

The introduction of Regulations giving additional rights to agency workers is obviously a step in the right direction in terms of greater equality of treatment with other workers and job security.

However, to be of any value, workers need to know what to do if a temporary work agency or a hirer breaches them.

Basic conditions

If an agency worker thinks they have been treated differently in terms of their right to basic working and employment conditions after 12 weeks, they are entitled to make a written request to the temporary work agency for a written statement under Regulation 16 to clarify these conditions.

Within 28 days of receiving it, the agency has to provide the following in writing:

  • relevant information relating to the basic working and employment conditions of comparable workers
  • the factors that the agency considered when deciding which basic working and employment conditions applied to the agency worker at the time of the alleged breach, and
  • information describing the relevant terms and conditions of comparable employees and the basis on which it considers those employees are comparable.


If the agency does not reply within 30 days, the worker can make a written request to the hirer for information on the basic working and employment conditions of their workers. The hirer then has to provide a written statement within 28 days from the date of that request.

Facilities, amenities and vacancies

If the agency worker thinks the employer has treated them differently to other employees in terms of their day one rights (access to collective facilities and amenities and/or information about relevant job vacancies), they can ask the hirer directly under Regulation 16 for a written statement.

The hirer must provide a written statement answering their queries within 28 days of receiving the request. This should set out:

  • all relevant information relating to the rights of comparable workers and
  • the reasons for the difference in treatment.

Liability

The Regulations state that the person responsible for the breach is liable for it. In terms of a breach of Regulation 5 (basic working rights), however, liability can pass from the agency to the hirer.

For instance, if an agency worker did not receive the information to which they were entitled – about, say, holidays and pay – then the temporary work agency is liable in the first instance for not giving it to them.

Liability then passes to the hirer if the work agency can show it:

  • obtained (or took reasonable steps to obtain) the information about the basic working and employment conditions from the hirer
  • acted reasonably, having received the information, in determining the agency worker’s basic working and employment conditions
  • ensured that the agency worker was treated in accordance with those terms and conditions.


The hirer is always liable for breaches of Regulation 12 when it comes to information about collective facilities and amenities, Likewise, information about job vacancies under Regulation 13.

The agency and the hirer are responsible for their own breaches of rights under Regulation 17 (unfair dismissal and the right not to be subjected to a detriment).

Unfair dismissal

Agency workers who are employees can claim automatic unfair dismissal if the reason or principal reason for their dismissal was because they:

  • brought proceedings under the Regulations
  • gave evidence or information in connection with proceedings brought by any agency worker
  • made a request under Regulation 16 for a written statement
  • alleged that a temporary work agency or hirer had breached the Regulations
  • refused (or proposed to refuse) to forgo a right conferred by the Regulations
  • did anything under the Regulations in relation to a temporary work agency, hirer or any other person.


The agency worker can also bring a claim on the ground that the agency or hirer dismissed them because they had or intended to do any of the above.

This right is limited to agency workers who are employees, although it has historically been difficult for them to establish employee status.

An agency worker who is not an employee can bring a claim if they have been subject to a detriment (apart from dismissal) because they exercised their rights under the Regulations.

Other tribunal claims

Agency workers can also complain to a tribunal that the temporary work agency or the hirer infringed their rights in relation to:

  • basic working and employment conditions (Regulation 5)
  • breach of the provisions relating to permanent contracts (Regulation 10)
  • collective facilities or amenities (Regulation 12)
  • access to employment (Regulation 13)


Evidence

Information provided under these Regulations, whether in the form of a written statement or otherwise, is admissible as evidence in the proceedings.

A tribunal may draw an adverse inference if the temporary work agency or the hirer (as the case may be) deliberately failed to provide information without reasonable excuse or where the written statement was evasive or equivocal.

Time limits

If an agency worker wants to lodge a complaint about an alleged infringement of a right under Regulations 5, 12 or 17(2) or a breach of a permanent contract relating to pay between assignments under Regulation 10, they must lodge it within three months less one day of the date of the alleged detriment or breach.

If they allege an infringement under Regulation 13, the time limit is the same unless there is more than one breach. In that case it is three months less one day of the last time other individuals, whether employed by the hirer or not, were informed of the vacancy.

A tribunal can consider a complaint which is out of time if, in all the circumstances of the case, it considers that it would be just and equitable to do so.

Legal remedies

If the claim is successful, the tribunal can make a declaration, award compensation and/or make a recommendation. This might be that the hirer or agency (or both) take certain steps to reduce or prevent the adverse effect on the agency worker.

In making an award of compensation, the tribunal will consider what is fair, based on the nature of the breach and the losses the worker has suffered as a result, including loss of benefits.

If the tribunal awards compensation as a result of a breach of Regulation 5 (basic conditions) or Regulation 10 (permanent contracts), the minimum is two weeks’ pay unless it would not be fair to award the minimum amount.

A week’s pay is calculated on the basis of average pay received (or in the case of Regulation 5, pay they should have received) in the four-week period from the end of the assignment or, if the assignment has not ended, the date the complaint was lodged.

Where a claim for breach of Regulation 9 (avoidance due to structure of the assignments) is upheld, an additional award of compensation may be made of £5,000.

There is no cap on the compensation that can be awarded although a tribunal cannot make an award for injury to feelings.

If both the agency and the hirer are found to have breached the Regulations, the tribunal can decide the amount of compensation payable by the agency or hirer according to its assessment of responsibility for the breach.

If the tribunal decides that the hirer’s actions deprived the worker of their rights under the Regulations, for instance by rotating them to another job every 11 weeks, it can make an additional award of up to £5,000. 
This does not have to bear any relation to the worker’s actual loss.