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The Agency Workers Regulations 2010

These Regulations, which implement the European Temporary Agency Workers Directive, came into force on 1 October 2011.  They give agency workers the right, in some respects, to the same treatment as employees hired directly the end user (referred to as the ‘hirer’).

What is an Agency Worker? 

An ‘agency worker’ is defined by the Regulations as someone who is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer and who has a contract with the temporary work agency which is either a contract of employment or any other contract to perform work and services personally for the temporary work agency.  This does not include the genuinely self-employed.  Additionally, there is an exception in respect of agency workers who have a permanent contract of employment with a temporary work agency under which they continue to be paid a minimum amount between assignments (known as the “Swedish derogation”).

The Rights

Under the Regulations agency workers have some rights which apply from day one, and others that do not apply until completion of a 12-week qualifying period.

Day One Rights (Access to Vacancies and On-site Facilities)

The Regulations provide that, except where there is a genuine head count freeze, agency workers are entitled to be told of any relevant vacancies in the hirer during their assignment and given the same rights as a comparable worker to find permanent employment with the hirer.

The Regulations also provide that an agency worker has the right to be treated no less favourably than a comparable worker in relation to collective facilities and amenities, unless this less than favourable treatment can be objectively justified.  Examples of collective facilities and amenities include canteen and childcare facilities and transport services.  Further examples are given in Guidance published by the Department for Business Innovation and Skills, which mentions common rooms, car-parking and vending machines.  Off-site facilities and benefits in kind are not covered.   

Rights After 12-week Qualifying Period

Agency workers who have completed 12 continuous weeks with the same hirer in the same role have the right to the same basic working and employment conditions as they would have been entitled to had they been contracted by the hirer direct.  Any change of temporary work agency is irrelevant and engagement during only part of a week counts as one whole calendar week.

As the 12-week period is required to be in the same role, where the agency worker starts a new role with the hirer and the new duties are substantially different to those of the previous role, this will re-set the clock and a new 12-week qualifying period is required.

Breaks between assignments of six weeks or less will not act to break continuity.  Instead, any weeks worked for the hirer before the break will be treated as continuous with weeks worked after the break.  Continuity is also provided in respect of sickness for up to 28 weeks, where the break is for pregnancy, childbirth or maternity, paternity or adoption leave, for jury service, is a temporary cessation of work affecting all employees, or is due to strike action.

On qualifying, agency workers to be treated as if they had been recruited directly by the hirer in respect of “basic working and employment conditions”.  These basic terms include length of working time, rest periods and breaks, holiday and pay.  ‘Pay’ means any sums payable to a worker in connection with their employment and includes commission, holiday pay and bonuses directly related to the work of the agency worker.  Benefits in kind are excluded, except for vouchers or stamps of fixed value expressed in monetary terms and capable of being exchanged for money, goods or services.

Remedies and liabilities

Agency workers can claim against the temporary work agency and/or the hirer for a breach of the equal treatment provisions, although temporary work agencies have a defence where they can show they took reasonable stops to obtain the relevant information from the hirer and apply it into the contract with the agency worker.  Only hirers are liable for breach of the day one rights.  The claim must usually be presented to an employment tribunal within three months of the date of any alleged infringement or detriment and where the tribunal finds a breach of the Regulations, it will make an award of compensation for an amount it considers is just and equitable taking into account the nature of the infringement and the loss suffered.

Agency workers are also protected against being subjected to a detriment for asserting their rights under the Regulations and an agency worker who is an employee and is dismissed will have been unfairly dismissed where the reason for the dismissal is for bringing proceedings under or giving evidence in connection with proceedings under the Regulations or making allegations of a breach of the Regulations.

Practical guidance

Employers need to consider whether engaging agency workers fulfils a commercial need, or whether other types of employment relationship would be more appropriate, such as increased overtime and casual employees.  If employers continue to employ agency workers they should consider whether they currently restrict agency workers from accessing certain facilities and, if so, whether this will remain possible in light of the Regulations.  Employers should also consider negotiating indemnities in their agreements with temporary work agencies.

For more information please contact Alison Lythgoe.