Rights of agency workers

 

Agency workers

Employee or a worker: why it matters

Your rights depend whether in law you are regarded as an employee (who get the most protection) or a worker (which means you do not get as many rights). Agency workers do not qualify for rights to:

  • · Claim unfair dismissal where you are dismissed without notice or good cause.
  • · redundancy pay
  • · maternity, paternity and parental leave and to request flexible working
  • · paid time off for antenatal care
  • · a written statement of main terms and conditions of employment.

However as of 11 October 2011, agency workers gain new rights – including the right to the same basic terms and conditions as a directly employed worker (after they have been in the job for 12 continuous weeks).

Employee or worker: what is the test?

Ultimately only an employment tribunal or a court can decide what status – there is no simple test but as a rule of thumb the more control the employer has over you the more likely it is that a court will consider you to be an employee than a worker.

You are likely to be regarded as an employee if:

  • · Your employer requires you to work within set hours & pays you for being available to work
  • · Your employer tells you what work to do and you are not free to turn work down
  • · Your employer controls how and when you do work
  • · You cannot delegate or sub contract the work but have to do it personally
  • · Your employer supplies the tools or other equipment for the job
  • · Your employer deducts tax and National Insurance from your pay (but some workers are subject to such deductions).

You are likely to be regarded as a worker if:

  • · You are only offered jobs of work when they are available, and you are hired to complete each job rather than to attend or be available between set hours
  • · You decide how and when you work, and can refuse work when offered
  • · You can delegate or sub contract work
  • · You rely on your own tools and equipment
  • · No one deducts tax and National Insurance before receiving payment (though some workers do have deductions).

As an agency worker, you are more likely to be an employee if:

  • · You have worked continuously for some time for the agency or placement company &  unless they dismiss you this is likely to continue
  • · The agency or company decide the days you work and your terms and conditions
  • · The agency or company can dismiss you for misconduct
  • · You have a right to lodge a grievance under your contract.

Do agency workers have a right to be paid the minimum wage?

Yes. The National Minimum Wage (NMW) is the lowest amount that you can be paid for each hour that you work. People aged 22 and over cannot be paid less than £6.08 per hour. People aged 18 to 21 cannot be paid less than £4.98 per hour. 16 and 17 year olds cannot be paid less than £3.68 per hour.

Hourly pay for the NMW is worked out as an average over your pay period. If you are paid weekly, the pay period is a week. If you are paid daily, then the pay period is a day and if monthly paid, then the pay period is a month.

To work out hourly pay divide your gross pay (total pay before tax and other deductions) by the number of hours worked. If you have no fixed hours but are a piece worker (paid depending on output) or paid on completion of a specific job you either have to be paid the minimum wage per hour for all hours worked, or be paid 120% of the minimum wage for the number of hours it takes an average worker to complete an agreed amount of work.

If you think that you are not being paid the National Minimum Wage you can make a complaint directly to the Pay and Work Rights Helpline on 0800 917 2368.

Since 1 October 2011, agency workers who do same job with the same hirer for 12 weeks have the right to the same pay that would have applied if they were employed directly. (This right does not extend to pensions; sick pay; maternity, paternity or adoption pay; bonuses linked to company performance or which reward loyalty or length of service; redundancy pay or expenses).

What rights do agency workers have on working time?

Unless you consent you have the right not to work more than 48 hours a week. However, this limit is averaged over a 17-week period. Regular night workers should not work more than 8 hours in each 24-hour period. Night workers are also entitled to a free health assessment. Where your working day is longer than 6 hours you have the right to a rest break of 20 minutes. If you are under 18 however, you are entitled to a 30-minute break after working 4 and a half hours.

Since 1 October 2011, agency workers who have worked in the same job for the same employer for 12 weeks have the right to the same working time entitlements as if they had been employed directly.

Do agency workers get paid holiday?

You should receive at least 5.6 weeks paid annual leave.

Some agencies tried to get round this by saying the hourly pay rate included holiday pay, and that they therefore did not have to give extra pay when you take holiday. Now this practice (called “rolled-up pay”) is unlawful, and agency workers have a right to receive pay on days they take as holiday.

To determine your holiday pay your earnings over the most recent 12 week period are divided by the hours worked over the same 12 weeks to give you an average hourly rate.

Since 1 October 2011 once an agency worker has completed a 12 week qualifying period they have the right to the same holiday entitlement as if they had been employed directly including requesting/permitting holiday and enhanced pay.

Your leave entitlement can be calculated on a pro rata basis if you work part-time, and if you only work 6 months rather than a complete year, you will be entitled to half the annual entitlement.

Who is responsible for my safety as an agency worker?

Your agency has a duty not to place you in a job for which you are not qualified. Your agency also has a legal duty to find out about any safety hazards at the placement company, and what they are doing to avoid those risks. They should check that the hirer has carried out a proper risk-assessment, and inform you, before placing you with the organisation.

The company where you are placed has a legal duty to ensure the workplace is a safe, and must provide training and protective equipment.

Are agency workers protected from discrimination?

You have the right not to be treated less favourably than other workers, by either the agency or hiring company on the grounds of sex, race, disability, pregnancy, sexual orientation, religious belief or age.

From the 1st October 2011, agency workers have important new rights to equal treatment. Some of the rights apply from the first day while others require you to have worked in the same job for the same hirer for 12 weeks.

From the first day you will have the right not to be treated less favourably than a comparable employee in relation to collective facilities e.g. crèches, canteens, staff rooms, toilets, shower facilities,  transport services (such as local pick-ups and drop offs) and car parking. Also the right to be informed about vacancies with the hirer while on assignment with them.

After 12 weeks in the same job for the same hirer you have a right to the same pay, holiday and working time entitlements that you would have received if you had been employed directly.

Can agency workers join trade unions?

Yes. You also have the right to be accompanied at a workplace disciplinary or grievance hearing by either a colleague or trade union representative.

Am I entitled to know my full terms and conditions for agency work?

The terms and conditions on which it is agreed that an agency will undertake to find work for you must be confirmed in writing before any such services are undertaken.

Where an agency is finding temporary assignments for temporary workers, the written agreement must cover:

  • Whether you are an employee of the agency or a worker who is contracted for services.
  • That you will be paid for all work carried out.
  • The length of notice either way in order to terminate the contract
  • The minimum rate of pay that the agency reasonably expects to achieve for you.
  • Whether you will be paid weekly or monthly
  • The amount of paid leave that will be given

Also, as of 11 October 2011, agency workers will have the right to the same basic terms and conditions as directly employed workers (after being in the job for 12 continuous weeks).

I’m an agency worker. Do I get paid maternity leave?

As an agency worker, to qualify for SMP you must:

  • still be pregnant at the 11th week before the week your baby is due
  • have been engaged by the same agency for 26 continuous weeks by the start of the 14th week before the week in which your baby is due (“the qualifying week”) and still be engaged by the agency in the qualifying week.. Even if you haven’t worked for the agency in each of the 26 weeks ending with the qualifying week, you can still get SMP if the reason that you didn’t work is that the agency didn’t  have any work to offer you, or because you were ill or on paid annual leave.
  • have earned at least, or above, the level of the Lower Earnings Limit, currently £102.00 pw (before tax) in the 8 weeks (if weekly paid) or two months (if monthly paid) before the end of the qualifying week
  • have notified the agency of your pregnancy and the date on which you expect SMP to start.

The right to SMP starts when you go on leave rather than when you have the baby. For most women this will be just a week or two before their due date. For some it may be earlier. It’s also worth noting that if you’re off sick with a pregnancy-related illness in the 4 weeks before your due date, your maternity leave and SMP will be triggered automatically, regardless of whether you want it to or not.

SMP is paid for 39 weeks; at 90% of your average pay for the first 6 weeks and then at a flat rate for the remaining 33 weeks. From April 2011, the flat rate is £128.73 per week.

If you do not qualify for SMP, you may be able to claim Maternity Allowance from your local Benefit Agency office.

To qualify for Maternity Allowance you must have worked for 26 weeks during the 66 weeks before the week in which your baby is due.  You must have earned at least £30 per week on average during this time.  Payment of MA is not dependent on National Insurance contributions.

From 1 October 2011, pregnant agency workers and agency workers who are new mothers and who have worked for the same hirer in the same role for a 12 week qualifying period gain two important new rights.  These are:

  • The right to reasonable paid time off to attend ante-natal appointments when on assignments.
  • The right to be offered an alternative assignment for pregnancy related reasons or to be suspended on full pay where a suitable alternative assignment is not available.

If you are an employee of the agency, you will be entitled to these rights from day one of any assignment.

Are agency workers entitled to sick pay?

Provided your normal weekly earnings must exceed £102 a week. Where your pay varies, your entitlement depends on your average pay over the past 8 weeks.

You have to be absent from work due to illness for at least 4 consecutive days

If you qualify for SSP, it is paid at a fixed rate (currently £81.60 a week) for up to 28 weeks. It is not paid for the first 3 days that you are on sick leave.

Can my agency refuse to pay me if they don’t get paid by the company I’m placed with?

No.

Can my agency charge my company a ‘temp to perm’ fee if I take a job there after a placement?

An agency can only demand a fee where they have agreed a contract  which stipulates for a “temp to perm fee” and the agency also gives the hirer an option for an extended period of hire.

A hirer can also avoid paying a “temp to perm fee” after a certain period of time has elapsed after the end of a worker’s assignment. This is 14 weeks from the start of the assignment or 8 weeks from the end of the assignment, whichever ends the later.

If there has been a break of more than 6 weeks between the agency worker’s assignments for the hirer, this will break continuity for the purpose of calculating the 14-week period. In these circumstances, the first day after the gap ends becomes the starting point of the 14 weeks.

Can my agency charge a fee to find me work?

No, agencies cannot charge you a fee for taking you on their books, for searching for work for you and finding you temporary work.

Should an employer offer me a permanent job if I’ve been placed with them for a long time?

There is no obligation to offer you a job directly employed by them.

What are my rights when I start temping though an agency? Am I entitled to confirmation of terms and conditions?

The terms and conditions on which it is agreed that an agency will undertake to find work for you must be confirmed in writing before any such services are undertaken & must cover:

  • whether you are employed under a contract of employment (i.e. as anemployee) or under a contract for services (i.e. you are worker or self-employed)
  • the length of notice which you are required to give, and entitled to receive, in order to terminate the contract
  • the rate of pay that will be paid, or the minimum rate of pay that the agency reasonably expects to achieve for you. This must be at least the hourly national minimum wage rate
  • whether you will be paid weekly or monthly
  • the amount of paid leave that will be given – as most agency workers will be covered by the Working Time Regulations, they should be entitled to 5.6 weeks holiday pay as a minimum

The agency must also confirm details of any work placement you are offered in writing within 3 working days of the offer being made.

Details must include:

  • who the work is for
  • the start date
  • how long work is likely to last
  • type of work
  • location of work
  • hours
  • the rate of pay
  • any expenses payable
  • health and safety risks and the steps the hirer has taken to control these
  • experience, qualifications and training required for the role
  • full written details of any additional services that they are charging you for.

Changing terms

Your agency should not change the terms of your contract without your agreement.

What are the Agency Workers Regulations and what new rights will they give me?

The Regulations will give temporary agency workers the following rights:

From day one of an assignment agency workers will have a right to:

  • equal access to collective facilities provided by the hirer (such as canteens, staff rooms, toilet and shower facilities, workplace crèches, car parking and transport services)
  • information and the opportunity to apply for vacancies in the hirer’s workplace

After 12 weeks in the same role with the same hirer agency workers will have the right to:

  • equal treatment on pay, holidays and working time
  • improved pregnancy rights

The new rights only apply to agency workers.  They do not apply to those seeking permanent work through an agency, nor do they apply to the genuinely self-employed who are running their own business.

I am employed by my agency. Am I entitled to the new equal treatment rights on pay, holidays and working time?

Subject to certain conditions if you are an employee of an agency, and have a right to be paid between assignments where the agency is unable to find work for you, you will not be entitled to equal pay, even where you have worked for more than 12 weeks in the same role for the same hirer. This exemption from equal treatment only applies to pay.  You will be entitled to all other equal treatment rights including on holidays, working time and access to hirer’s collective facilities and information about permanent vacancies with the hirer

I suspect that my assignments are being manipulated to avoid me meeting the 12 week qualifying period for equal treatment. Is there anything I can do?

The Agency Workers Regulations include anti-avoidance measures which prevent hirers and agencies from engaging you on a succession of assignments, or from rotating you within an organisation, in order to stop you from qualifying for equal treatment rights.

The anti avoidance provisions apply if:

  • You have been moved to more than 2 substantively different roles with the hirer (or within a company associated with the hirer) or you had been hired on a succession of more than 2 assignments with a hirer.
  • The most likely reason why you were rotated or hired on the succession of assignments was because the agency or hirer (or associated company) intended to prevent you from qualifying for equal treatment.
  • You would have qualified for equal treatment if you had not been moved or hired on a succession of assignments.

Where an Employment Tribunal decides that a hirer or agency has breached these anti-avoidance provisions, they can award you up to £5,000.

Keep detailed evidence of your assignments, including who you worked for and for how long and any breaks you had from work, including for holiday, sickness or where the employer did not require you.

As an agency worker am I entitled to the same bonus payments as directly employed staff?

Even if you have the qualifying period it depends on the type of bonus payment – it does not include bonuses which are not connected to an individual’s performance and which reward loyalty or length of service.

Do periods of sick leave count towards the 12 weeks needed for agency workers to qualify for equal treatment?

Yes, sick leave does not break your continuity of employment for the purposes of the 12 week qualifying period.

I think that my agency / hirer are denying me equal treatment under the Agency Worker Regulations. What can I do?

You can make a claim to the Employment Tribunal. There is a 3 month time limit for claims to an Employment Tribunal.

The Employment Tribunal will award a minimum of 2 weeks’ pay.  If you successfully demonstrate that the anti-avoidance measures have been breached the Tribunal will be able to award up to £5000 compensation.

If your complaint relates to equal treatment on pay, holidays or working time entitlements, you should write first to the agency.  Note you cannot make a request until you have completed the 12 week qualifying period.

The agency has 28 days to respond in writing confirming:

  • relevant information about basic working and employment conditions relevant to the request – for example details about pay rates / scales, holiday entitlement of directly employed staff.
  • relevant information or factors that were taken into account when determining your basic working and employment conditions.
  • where equal treatment is based on an existing comparable employee, relevant terms and conditions that apply to that employee, and explaining reasons for any differences in treatment (eg : different skills , qualifications , experience).

If you do not receive a written response within 30 days of making the request, you can write to the hirer directly and request the same information from them.  The hirer has 28 days to respond from the date they received your request.