News Update Agency Workers

Agency Workers Regulations

The Agency Workers Regulations will come into force on 1 October 2011. These regulations give agency workers the right to parity with regards to pay and basic conditions once they have been in the same job for 12 weeks.

They will also be entitled to access facilities and information on job vacancies from day one of an assignment.

The government has provided guidance on the new regulations and we would recommend that anyone who uses agencies or anyone providing staff via an agency reads these guidance notes: The BIS guidance: Agency Workers Regulations Guidance

Key areas of the new regulations have been summarised below:

Agency workers include not only those supplied by a temporary work agency, but also those engaged by umbrella companies or supplied through intermediaries, to work under the direction and supervision of a hirer on a temporary basis. The genuinely self-employed are excluded, whether they operate as sole traders, through limited liability companies or self-employed partnerships. Please note that 'Ltd Company Contractors' may fall under the regulations.

An agency worker will qualify for equal treatment after "12 weeks' service" in the same role with the hirer (or more than one hirer) as if he/she had been recruited and employed directly by the hirer to do the same job.

Where hirers deliberately try to avoid qualifying service, e.g. by rotating workers between different roles or by offering 11 week assignments punctuated by seven week breaks, a tribunal will be able to make an additional award of up to £5,000 for a successful claim. As a further deterrent, in low-value cases there will be a minimum award of two weeks' pay.

The "given job" will usually be obvious. If during an assignment the worker's responsibilities change substantially so that they genuinely amount to a different 'given job', a fresh 12-week qualifying period may commence - but the changes will have to be significant.

"Equal treatment" will include working time and pay. "Working time" includes:

  • duration of working hours 
  • rest breaks 
  • holidays 
  • night work restrictions etc.

"Pay" includes basic pay and "other contractual entitlements that are directly linked to the work undertaken", e.g.:

  • fees 
  • bonuses which depend on individual performance such as piece-work, production target bonuses and personal performance bonuses 
  • commission 
  • holiday pay 
  • overtime 
  • shift allowances 
  • luncheon vouchers etc.

Pay excludes:

  • occupational sick pay 
  • share options 
  • enhanced maternity/adoption/paternity pay 
  • redundancy pay 
  • expenses 
  • loans 
  • guarantee payments 
  • paid time off (for trade union duties and other paid time off rights).

Workers will have access from day one to amenities or collective facilities provided by the hirer, such as canteen or creche facilities (unless there is objective justification to deny such access), transport and vocational training.

Pregnant agency workers will have the right after completing the 12 week qualifying period in a 'given job' to take paid time off for antenatal care and to suspension on health and safety grounds.

The agency worker will also have the right from day one to be provided with information about any relevant vacancies within the hirer that would normally be available to an employee.

Agencies will be primarily responsible in the event of non-compliance, however as they will be reliant on information being provided by the hirer, liability will switch to the latter where the hirer has provided inaccurate or incomplete information. In reality, claims are likely to be brought against both parties jointly.

Agency workers who feel they have been subjected to less favourable treatment may bring an employment tribunal claim for equal treatment. A successful claim may result in compensation, a declaration of the worker's rights and/or recommended actions for the hirer to take.