Rights of Agency Staff

Agency staff are identified as being “workers” instead of employees.  All workers and this includes agency workers are entitled to certain rights which include the following:

• Annual leave (paid)
• A rest break and a limit on working time
• National Minimum Wage
• No deductions that are carried out unlawfully
• Discrimination rights in accordance with the Equality Act 2010
• Health and safety in the workplace

Are you an agency worker?

You are an agency worker if you have a contract with an agency but you work temporarily for a hirer. Agencies can include recruitment agencies, i.e.‘temp agencies’.

You are also an agency worker if you look for work through entertainment and modelling agencies.^[1]

You are not an agency worker if you:

• find work through an agency but work for yourself - you may be self-employed^[2]

• use an agency to find permanent or fixed-term employment^[3] - check with the company that hired you

• take a ‘pay between assignments’ contract^[4] - you’re an employee of the agency

If you are unsure it is always best to take some advice.

The Agency workers regulations^[5] give agency workers the same treatment as comparable employees in regards to working conditions and basic employment rights once they have been in continuous employment of 12 weeks.

The regulations covers those that have been hired on a temporary basis,  it also covers those agency workers that have been supplied via intermediaries, in order to establish rights set out in the regulations the workers much be able to identify a comparator.

The regulations don't cover the genuinely self-employed, individuals working through their own limited liability company, or individuals working on managed service contracts.

How do the fees work?

Recruitment agencies cannot charge you a fee for finding or trying to find you work.

They can, however, charge you for certain services, for example CV writing, training or transport. You have the right to cancel these as long as you give the agency notice.

If any agency offers you services it:

• must give you full written details of the fee and conditions before charging you - including details of your right to cancel and the notice period

• can’t make you use these services as a condition for finding you work

There are different rules for entertainment and modelling agencies.^[6]

When you want to cancel a service?

You can cancel paid services without a penalty. You must give a minimum of:

• 10 working days’ written notice to the agency to cancel living accommodation

• 5 working days’ notice for all other services, such as training courses

You can make a complaint to ACAS^[7] or take advice from an employment solicitor, if you think your agency has unfairly charged you or it will not refund you during the notice period.

What must your agency give you?

Your agency must give you written terms of employment before looking for work for you.

The written terms should include the following:

• whether you’re employed under a contract for services or a contract of employment

• your notice period

• your pay

• your holiday entitlement

When you’re offered a job the agency must also tell you:

• your start date

• how long the contract is likely to last

• the type of work

• about any expenses you may have to pay

• the location

• your hours

• about any health and safety risks

• about any experience, training or qualifications needed for the role

If your agency changes your terms

An agency cannot change your terms and conditions without telling you. If you agree to changes you must be given a new document with the full details of the changes and the date they changed.

An agency can’t give information about you to any third parties (including current employers or hirers) without your permission.

Are agency workers entitled to Equal treatment?

You have worker’ employment rights^[8] from the first day you start working.

You also have the same rights as your permanent colleagues to use any shared facilities and services provided by your employer, i.e.:

• canteen or food and drinks machines

• workplace creche

• car parking

Rights after 12 weeks

After 12 weeks in the job you qualify for the same rights as someone employed directly by the company. This is known as ‘equal treatment’.

Your rights include:

• ‘equal pay’ - the same pay as a permanent colleague doing the same job

• automatic pension enrolment

• paid annual leave

You won’t be entitled to equal pay if you’re offered a ‘pay between assignments’ contract.

How do I count the 12 week period?

You start counting your 12 week qualifying period from your first day at work.

You don’t have to be at work for 12 weeks in a row - some types of leave count and there can be breaks.

You don’t count the days on sick leave or a break

The qualifying period will pause when you are on sick leave or breaks. Days that don’t count towards the 12 weeks, are when:

• you take a break of 6 weeks or less

• you are on leave due to sickness or injury for up to 28 weeks

• you take annual leave you are entitled to

• the workplace closes, for example for Christmas

• you are on jury service for up to 28 weeks

Can I count time off for pregnancy, paternity or adoption?

Yes, your 12 week qualifying period will continue through time off you have for:

• pregnancy^[9] and up to 26 weeks after childbirth

• adoption leave or paternity leave

If your leave is more than 12 weeks you’ll qualify for equal treatment when you return to work.

What happens when I get a new job or role?

You will start back at the beginning and the 12 weeks will start again, if you:

• get a new job at a different workplace

• have a break of more than 6 weeks between jobs at the same workplace

• stay at your workplace but take a new role that’s ‘substantively different’

A substantively different role is one that’s completely new, different work. It could be a combination of different: i.e.

• skills, or requiring new training

• pay rate

• location or working hours

How does the pay work?

As an agency worker you are entitled to the National Minimum Wage^[10] for all the hours you work, even if you haven’t recorded them on a timesheet, so it is important to keep your own record of hours worked..

As stated above you are entitled to be paid the same as full time permanent staff after 12 weeks and you can ask to be paid the same for doing the same job.

What can I do if the agency withholds your pay?

The agency can legitimately delay paying you while they get proof of the hours you have worked, but only for a reasonable period of time.

The agency cannot refuse to pay you because your hirer’s unhappy with your work - this is a contractual issue between your agency and the hirer.

You can make a claim to an employment tribunal^[11] if your agency is refusing to pay you.

‘Pay between assignments’ contracts

If your agency offers you a ‘pay between assignments’ contract you will be an employee of the agency, not an agency worker so it important to read your contract and take advice if you need clarification.

You will get paid even when you’re not working and you must be given an employment contract.^[12]

You are not entitled to equal pay under a pay between assignments contract, however, the rest of your rights will stay the same.

You must get 50% of your previous pay, calculated at the highest rate of pay received during any one week.

The agency must give you a contract stating the following:

• the type of work you will be undertaking

• that you are giving up the right to equal pay

• minimum pay rates and how they will be calculated

• where you are expected to work

• minimum and maximum working hours (the minimum must be at least one hour)

The agency can’t ask you to come into its office for an hour to avoid paying you between jobs.

You will only get ‘pay between assignments’ for full weeks when you don’t have any work provided by the agency.

If the agency ends the contract:

• it must give you 4 weeks’ pay between assignments

• you may be entitled to certain rights, such as notice pay^[13] and redundancy pay^[14]