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Agency Worker Regulations

The Agency Workers Regulations 2010 came into force in England, Scotland and Wales on 1 October 2011.

In summary, the Regulations will give Agency Workers the right to the same basic working and employment conditions they would receive if they were engaged directly by an end user client to do the same job; this is limited to conditions that relate to pay and working time.

In summary, the Regulations will give Agency Workers the right to the same basic working and employment conditions they would receive if they were engaged directly by an end user client to do the same job; this is limited to conditions that relate to pay and working time.

An Agency Worker is:

  • an individual;
  • who is supplied by a temporary worker agency to work temporarily under the supervision and direction of a client; and who
  • has a contract of employment or any other type of contract (a contract for services for example) under which they provide their services personally for the agency.

Are Limited Company Contractors “Agency Workers”?

The Regulations do not specifically exclude limited company contractors, however individuals who are genuinely self-employed, i.e. in business of their own account (whether by way of a limited company or otherwise) and who do not work under the supervision and direction of the client are not “Agency Workers”.

How Does an Agency Worker Qualify for Equal Treatment?

The Regulations state that an Agency Worker is not entitled to equal treatment until they have completed the Qualifying Period.

The Qualifying Period is determined as the Agency Worker working in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments.

What is Equal Treatment?

Agency workers must qualify for equal treatment in order to be entitled to receive equal pay and working conditions.

A qualifying agency worker is entitled to the same basic working and employment conditions as they would be entitled to for doing the same job had they been recruited by the hirer.

These basic working and employment conditions are:

  • pay;
  • the duration of working time;
  • night work;
  • rest periods;
  • rest breaks;
  • annual leave.

Equal treatment also includes Day One rights.

What are Day One Rights?

Agency Workers are entitled to access collective facilities which clients make available to their own employees and workers collective, such as:

  • canteen (but not free or subsidised meals);
  • hildcare facilities
  • transport services;
  • toilets/shower facilities;
  • staff room;
  • mother and baby room;
  • car parking;
  • food and drinks machines.

Agency workers will also be entitled to details of the client’s existing relevant vacancies. There is no qualifying period for these rights so agency workers are entitled to them from day one of the assignment.

Access to Information Regarding Vacancies:

Agency Workers are entitled to be provided with the same information as the client’s own directly engaged workers about any jobs which the client is seeking to fill. However, this does not mean that an Agency Worker has a right to be employed by the client.

What is Equal Pay?

“Pay” is defined as “sums payable to a worker of the hirer in connection with the worker’s employment, including any fee, bonus, commission, holiday pay or other emoluments referable to the employment whether payable under the contract or otherwise.”

What is the Annual Leave Entitlement under the Regulations?

Qualifying Agency Workers are entitled to the same annual leave as workers directly engaged by the client. Therefore, if a client gives its direct recruits or comparable employees more than the statutory entitlement, then the agency worker will also be entitled to the additional leave.

Compassionate or Bereavement Leave:

Compassionate or bereavement leave is a contractual arrangement between the employer and employee. Compassionate or bereavement leave will not be a right under the Regulations, the only entitlement to additional leave is to additional holiday above the statutory minimum.

What are the Permitted Breaks in Assignments?

Working for 12 continuous weeks:
Any week in which the agency worker works for the hirer will count towards the 12 week qualifying period, even if it is for just one day in a week or even 1 hour that week. However, the agency worker does not have to work for 12 continuous weeks in order to reach the qualifying period. The Regulations allow the agency worker to have certain breaks in an assignment without having to start counting towards the 12 weeks from scratch. This means that an agency worker’s qualifying period can be accrued over a period of time which exceeds 12 weeks.

The six week break:
Regulation 7 provides that if the agency worker takes a break from an assignment for any reason and the break is for six weeks or less, on returning to the same role, the weeks that the agency worker previously worked will be carried forward.

Other breaks permitted in the Regulations:
An Agency Worker having worked in the same role with the same client will also be able to carry forward weeks previously worked towards the qualifying period if they have a break in continuity which is caused by:

  • sickness or injury (up to a maximum of 28 weeks and provided evidence is given to the agency where requested);
  • pregnancy, childbirth or maternity and the agency worker is within a “protected period” (i.e. from the beginning of pregnancy to 26 weeks from childbirth);
  • statutory/contractual maternity, adoption or paternity leave;
  • jury service;
  • periods when the client does not require the agency worker because of various types of industrial action at the client’s establishment; or
  • periods when the client does not require the agency worker because the business has temporarily closed down (e.g. Christmas shut down).

This means that even if the break is for six weeks or more but is for one of the reasons listed above, any weeks worked prior to the break will be carried forward and added to any weeks worked subsequently.

The Regulations do not apply to:

  • individuals who have found a permanent job with a Client, even if they were introduced by an Agency;
  • individuals who are genuinely in business on their own account (i.e. genuinely self-employed) and not working under the direction and supervision of the client will not be within scope. Workers engaged via umbrella companies or other intermediaries will be in scope unless they are genuinely self-employed (for further information see Factsheet 2);
  • individuals who work for in-house temporary staffing banks, this is where an organisation engages its own temporary workers directly;
  • individuals on secondment or loan from one organisation to another; and,
  • individuals working for managed service contractors and who are not working under the supervision and direction of the client.