Sophie Park provides an overview of the measures introduced under the Agency Workers Regulations 2010, which came into force in October 2011, giving them additional protection under UK employment law

The new rights conferred by the Regulations apply to individuals who, having signed up to a temporary work agency, go to work for a third party, known as the “hirer”. These are mainly to do with pay and benefits.

Main rights

Agency workers are now entitled to:

  • the same basic working and employment conditions as comparable employees engaged directly by the hirer after a qualifying period
  • access to the same facilities and amenities as workers directly employed by the hirer
  • the same opportunities to be informed of, and apply for, vacancies with the hirer as directly employed workers.


The most significant right is to the same basic working and employment conditions as employees appointed directly by the hirer, including pay, working time, night work, rest periods, rest breaks and annual leave.

Pay

From the agency worker’s point of view, the right to equal pay has the potential to bring the greatest benefits. Pay is defined as any sum payable in connection with the worker’s employment. This includes basic pay, commission, overtime and shift allowances.

The Regulations list certain financial benefits to which the agency worker is not entitled, such as occupational sick pay, pensions, contractual maternity, paternity and adoption pay, redundancy payments and reimbursement of expenses.

Bonuses

One area that may cause difficulties is entitlement to bonuses. The Regulations include bonuses within the general definition of sums payable in connection with their employment, but there is an express exclusion if the bonus is not due to the agency worker’s own work.

This means that the agency worker should benefit from any performance-related bonus scheme; for instance, if the team of which they are a member receives a bonus for exceeding their targets. They will not, however, be entitled to bonuses that the hirer pays their employees at certain times, such as Christmas or to reflect the overall profitability of the business.

Working time

Many of the other defined terms and conditions relate to working time and breaks covered by the Working Time Regulations (WTR) 1998.

Although the WTR already apply to agency workers, the new provisions mean that they are automatically entitled to any contractual provisions that are more generous, such as additional paid annual leave, paid rest breaks or longer breaks.

Arguably, agency workers should also have equal access to flexible working arrangements, such as time off in lieu schemes or flexi-time.

Qualifying periods

Agency workers only become entitled to the rights after a qualifying period of 12 continuous weeks in the same role with the same hirer. The qualifying period is based on calendar weeks, irrespective of the number of hours they work each week.

However, the way in which time for the qualifying period is clocked-up can vary. For instance, the clock is deemed to ‘pause’ and then resume:

  • following a break of no more than six calendar weeks if the agency worker returns to the same role with the same hirer
  • following a break of up to 28 weeks because the agency worker is off work because of sickness or injury
  • to allow the worker to take leave to which they are entitled
  • following a break of up to 28 calendar weeks to perform jury service
  • if the break was caused by a regular and planned shutdown of the workplace by the hirer (for example at Christmas)
  • if the break was caused by a strike, lock out or other industrial action at the hirer’s establishment.


Breaks when the clock continues to tick for the whole duration of the assignment include those that:

  • are due to pregnancy, childbirth or maternity, which take place during pregnancy and up to 26 weeks after childbirth
  • are due to the worker taking maternity leave, adoption leave or paternity leave.


However, the clock goes back to zero:

  • if the agency worker starts a new assignment with a new hirer
  • stays with the same hirer but not in the same role
  • has a break between assignments with the same hirer of more than six weeks (unless it falls into one of the above categories).

Eleven weeks

There is nothing in the Regulations to prevent hirers from releasing an agency worker after, say, 11 weeks or to adopt a practice of having assignments that only last 12 weeks.

However, if an agency worker makes a claim that they are being rotated between associated companies into similar roles with regular frequency, a tribunal may decide that the company is trying to deprive the worker of equal treatment.

If so, the agency worker will be deemed to have completed the 12-week qualifying period or will retain the entitlement to equal treatment.

This could result in a penalty of up to £5,000 against the hirer or split between parties in a way the tribunal considers just and equitable.

Collective facilities and amenities

Agency workers are also entitled to be treated no less favourably in accessing collective facilities and amenities as a comparable employee, from the first day of their assignment, under the Regulations.

Employers have historically denied agency workers access to these types of facilities, particularly those on long-term assignments, as a way of establishing a distance between them so that the agency worker could not be deemed their employee.

The Regulations do not define collective facilities or amenities, but they include canteens, childcare and transport facilities. Other amenities could include gyms, social and sports clubs, car parking and prayer rooms.

Although agency workers have a right to no less favourable treatment from the first day of their assignment, this does not mean they will automatically have access to these collective amenities from the first day.

For example, if the hirer only grants directly engaged employees or workers access to some facilities after, say, a three-month probation period, then the agency worker would also only be entitled to access after the same time. Or the hirer could try to argue that any less favourable treatment in agency workers’ access to facilities was objectively justified.

Job opportunities

The hirer must inform agency workers of relevant vacancies and allow them the same opportunities to apply for them as comparable employees and workers.