The Agency Workers Regulations came into effect in 2011.They apply to anyone who is paid via the PAYE scheme by a supplying agency or an umbrella limited Company under a contract of employment or a worker under a contract for services.
They do not apply to any self-employed limited Company Contractor or anyone who is genuinely employed in business on their own account.
Entitlements
From Day 1 an Agency Worker is entitled to receive:
- National Minimum Wage
- Statutory Paid holidays, (which can include bank holidays)
- Rest breaks and limits on working time,
- No unlawful deduction from wages
- Freedom from discrimination under Equality legislation,
- Protection under Health & Safety legislation,
- Details of job vacancies with the hirer
- Same access to shared facilities as employees of the Hirer such as the canteen, staff crèche, car park, staff room and prayer room.
They are not entitled to Redundancy Pay and do not have the right to claim unfair dismissal.
If an Agency Worker has a comparable person who is employed by the hirer following a period of 12 weeks then they are entitled to equal treatment. This includes the following:
- Basic Pay, Overtime, Commission and any Bonuses linked to the individual performance of the Agency Worker
- Holidays above Statutory Entitlement
- Shift pay
- Paid time off for antenatal appointments
- The right to be offered suitable alternative work or be suspended on full pay if there are health and safety risks associated with a pregnant agency worker
It does not include:
- Benefits in kind such as a Company Car, Health Insurance
- Notice Pay
- Occupational Sick Pay
- Pensions (Agency Workers will be covered via their Agency subject to auto-enrolment legislation)
- Occupational Maternity, Paternity and Adoption Pay (some Agency temps may qualify for Statutory payments via their agency if they have enough service)
- Share and Option schemes
- Loyalty bonuses (such as a Christmas bonus) or any bonuses which are not related to the individual performance of the Agency Worker
The 12 weeks qualifying period
An Agency Worker will be entitled to equal treatment with a comparable employee if they have performed work in each of the 12 consecutive calendar weeks.
The following will pause the qualifying period but not break continuity:
- Any absence of up to 6 weeks
- Sickness of up to 28 weeks
- Statutory or contractual holidays
- Jury service of up to 28 weeks
- A planned shutdown of the hirer’s work (such as a Christmas closure)
- A strike, or other industrial stoppage
Continuity will be broken and the 12 weeks qualifying period will go back to day 1 by:
- A break of more than six weeks
- The commencement of a new and substantively different role either with a new hirer or within the Organisation
What are the penalties?
Liability depends on who is determined to have caused unequal treatment of the worker. Agencies must show that they have made reasonable effort to initiate and apply equal treatment. However, the rights from day one (equal access to job vacancies and shared facilities) are entirely the hirer’s responsibility. Agency workers who have been treated unequally would be entitled to a minimum of 2 week’s wages.
Organisations found to have deliberately tried to avoid the Regulations by employing Agency Workers on a series of short-term contracts or by falsifying roles will be fined £5000.
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