What are an agency worker’s rights?
So you work for an agency. But what are your rights? In law, there are different types of employment status:
- Employee (you are employed by the hiring company and have an employment contract with them)
- Worker (you may have an employment contact with either the hiring company or the agency, although it may not be in writing)
- Self-employed (you don’t have an employment contract but may work under a project contract)
Your employment status makes a difference to the rights you’re entitled to and the obligations you have. When you work for an agency, you might be classed as an ’employee’ or a ‘worker’ for the duration of the assignment.
Note that, no matter how your employer classifies you, the tribunal will assess the ‘true relationship’ between you and them.
Whether you’re an employee or a worker, you get certain rights immediately, while others are added after you’ve worked for the same hirer for 12 weeks. You are not protected if you are self-employed, on a managed service contract, or working under your own personal service company.
As an employee or worker
You are entitled to certain rights as soon as you start work at a new hiring company. These include your right:
- Not to be discriminated against
- To be paid at least the National Minimum Wage or National Living Wage
- To receive a minimum of 5.6 weeks’ holiday
You should receive timesheets from the agency, but it’s also worth keeping your own written record of the hours you work.
The agency should pay you promptly, whether or not they’ve been paid by the hiring company.
As an employee
You’d have the right to receive compensation if you lose your job in the following circumstances, as it would count as automatic unfair dismissal:
- You have reason to believe you’re in serious and imminent danger at the workplace
- You take steps over a health & safety issue, for example, you complain about the working conditions
- You inform your employer about the health & safety issue in an appropriate way
If you are treated in a way that leaves you worse off, you can also make a claim. Examples of such detriment might include:
- Your employer reduces your hours
- You are bullied or harassed at work
- You ask for training but your employer turns down your request without having a good reason
As a worker
As soon as you start the new assignment, you have the same rights as direct employees to use shared facilities and services, such as:
- Canteen
- Food-and-drink machines
- Childcare services
- Car parking
- Transport services
After 12 weeks
A ‘week’ doesn’t have to be Monday to Sunday. It can be any seven days, starting from the date your assignment began.
After 12 weeks in the same job, agency workers get the same rights as people who are employed directly by the hiring company. This is called ‘the right to equal treatment to pay’, and includes your right to receive:
- Payslips
- Basic pay
- Holiday pay
(You also have the right to carry over holiday you’ve not taken to a new assignment, and get paid for any holiday you’ve not taken if you leave the agency) - Commission
- Overtime
- Performance-linked bonuses
- Working hours
- Night work
- Rest breaks and rest periods
(That is at least a 20-minute rest break if you work more than six hours, 11 hours’ solid rest in any 24-hour period, and one day off work each week) - Paid time off for antenatal appointments
It doesn’t include your right to receive:
- Company performance bonuses
- Long-term loyalty schemes
- Expenses
- Enhanced maternity, paternity and adoption pay and Shared Parental Pay
- Company pension schemes
(Employment agencies must automatically enrol you into a pension scheme within three months of the start of a contract. If you don’t want this to happen, you must tell the agency and the pension provider that you want to opt out.) - Redundancy that’s more than statutory
- Sick pay that’s more than Statutory Sick Pay
- Guarantee payments
- Season ticket loans
- Paid time off for trade union duties
Under the Agency Workers’ Regulations, agencies are not allowed to create patterns of assignments that stop you reaching the 12-week qualifying period.
Resetting the 12-week qualifying period
The 12-week qualifying period will ‘reset’ to zero if:
- You stay with the same hirer but start doing a ‘substantively different’ role (see below)
- There is a break of more than six calendar weeks between assignments at the same hirer
- You move to a new assignment with a new hirer
A ‘substantive’ change is when there is a genuine and real difference to your role. It would usually mean that a combination of these elements are changed:
- Training
- Skills and competences
- Pay rate
- Location
- Line manager
- Working hours
- Equipment
If the qualifying period is being reset to zero, you should be advised in writing.
The 12-week qualifying period continues after a break which is:
- No more than six calendar weeks before you return to the same role at the same hirer
- Because of entitlements such as annual leave, maternity leave, paternity leave, shared parental leave or adoption leave
- Due to the workplace closing, such as the Christmas shutdown, or due to a strike or other industrial action at the workplace
- Because you were off sick or had to attend jury service (up to 28 weeks)
- Because of pregnancy, childbirth or maternity breaks (during pregnancy and up to 26 weeks after the birth)
What this means to you
If you’re an agency worker and have any concerns or questions, do give us a call. We act for employees and workers, not for agencies and employers, and will be happy to help.
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