An agency worker typically ‘signs up’ with an employment agency to work for one or more of the employment agency’s clients. Assignments are often for a fixed period, but can be long term and open-ended. The rights of agency workers are often far from clear because there are different rights and obligations depending on an agency worker’s employment status. There is also legislation which specifically grants or excludes certain rights to agency workers, regardless of their employment status.
Introduction
Agency workers may be an employee or a worker of either the employment agency or the client (the hirer), or neither. Whether a person is classed as an employee can sometimes be difficult to determine. It requires consideration of several factors including mutuality of obligation (essentially, the obligation on an employer to offer work and an obligation on an individual to accept it), personal service and the control exerted by the employer over the way the work was done.
Most agency workers are not considered ‘employees’ and do not enjoy the same rights as employees, such as the right to make a claim for unfair dismissal or redundancy. However, the Agency Workers Regulations 2010 give agency workers many of the same basic working conditions as equivalent permanent staff.
What are an agency worker’s rights under the Agency Workers Regulations?
From the first day of their assignment, an agency worker is entitled to:
• The same access to facilities and amenities as a permanent employee, e.g. childcare or use of the staff canteen;
• Information about vacancies within the hirer’s business.
After a 12-week period, an agency worker is entitled to receive the same treatment as a permanent employee in the following areas:
• Pay
• Duration of working time
• Night work
• Rest periods
• Rest breaks
• Annual leave
• Paid time off for antenatal appointments.
Pay
Pay includes commission, individual performance bonus, overtime and shift work. Agency workers are entitled to receive the National Minimum Wage and have the right to an itemised payslip.
However the Regulations do not cover pay that is linked to longer-term retention such as redundancy pay, notice pay, company sick pay, company pensions or enhanced maternity/paternity or adoption pay.
Working time and holiday entitlements
Agency workers are entitled to the same terms and conditions relating to night work, rest periods and rest breaks, paid annual leave and the duration of working time, and to be paid at the appropriate overtime rate as they would have received as a direct employee.
Other Agency Workers rights
Agency workers may have protection under other legislation. For example, they may have protection against discrimination under the Equality Act 2010. They also have protection in relation to whistleblowing even if they are not an employee or worker of either the employment agency or the hirer.
Further reforms are anticipated. The government has confirmed its intention to legislate to bring in a number of reforms that will benefit agency workers. These include the right to a Key Facts Page (essentially a statement giving key information relating to the relationship between the employment agency and the work-seeker), stricter state enforcement and the right to a written statement of terms from day one.
Remedies and liability for Agency Workers
If an agency worker’s rights are breached, they may be able to bring a claim in the employment tribunal. For a breach of those ‘day 1’ entitlements, the hirer is liable. For breach of the ’12-week’ rights liability may rest with either the employment agency or the hirer.
A claim should generally be made within 3 months of the breach. A tribunal can make a declaration, order payment of compensation or make recommendations for action to be taken. Compensation for a breach is predominantly based upon the worker’s loss of earnings but may also include any expenses incurred as a result of the breach and the loss of any benefit which the worker might reasonably be expected to have had but for the breach.
How can Lincs Law Employment Solicitors help?
The rights of individual agency workers can be a complex area. If you would like specific advice please contact us on 01522 440512 or visit our website at www.lincslaw.co.uk.
Kathryn Bolton
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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