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October 2011 Newsletter

November 16th, 2011

Agency Workers Regulations


From 1st October 2011, the Agency Workers Regulations came into force

giving agency workers new rights.


Who is an Agency Worker?

 The regulations apply to agency workers who are defined in the regulations as workers who:

  •  are supplied by a temporary work agency
  • to work temporarily for and under the supervision of the “hirer”
  • have a contract of employment with the temporary work agency or a contract to perform work and services personally for the agency.

 So, if a business or organisation is provided with temporary workers by an agency and that business supervises those workers but does not contract directly with the workers, those workers are likely to fall within the ambit of the regulations [and the business or organisation will be the “hirer” under the regulations].


Those workers who are not covered by the regulations include:

  • workers who are genuinely self employed
  • employees who are recruited by an employer through a recruitment agency (as they become employees directly employed by the employer)
  • workers who work for a company providing a ‘managed service contract’ e.g. a company which provides, say, cleaning services for another company but supervises its workers directly.

 Also, workers who are engaged directly by a business through an in house temporary staffing bank are unlikely to be covered by the regulations.  Note that such staff may fall within the ambit of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations.

 What Rights are provided to an Agency Worker?

 Agency workers will be entitled to the same basic working and employment conditions as they would have been entitled to if they had been recruited for the same job by the hirer directly. 

 From the start of his or her engagement the agency worker is now entitled to

  •  the same “collective facilities and amenities” as a comparable worker
  • to be informed by the hirer of any vacant positions which the hirer has
  • to be given the same opportunity to find permanent employment with the hirer as a comparable worker.

 The Regulations state that “collective facilities and amenities” include canteen and “similar facilities”, childcare facilities and transport services.

 A comparable worker is defined as an individual who at the time of any alleged breach of the regulations:

  •  is working for and under the supervision of same hirer and is engaged in broadly similar work as the agency worker
  •  is based at the same establishment as the agency worker and is an employee (or if not an employee a “worker”) of the hirer.
  • If there is no comparable worker who is based at the same establishment as the agency worker then a comparison can be made with an employee (or worker) of the hirer who works at another establishment of the hirer.

 After the agency worker has worked for the hirer for 12 continuous calendar weeks in the same role, the agency worker acquires further rights.  There are detailed regulations as to how the qualifying period is to be calculated (e.g. what time taken off during an assignment must be counted towards the qualifying period or the circumstances in which breaks in an assignment will not have the effect of setting the qualifying period back to day one).

 The worker will be entitled to the same terms and conditions as a person who has been recruited directly by the hirer in relation to the following:

  • pay
  • the duration of working time
  • night work
  • rest periods
  • rest breaks
  • annual leave.

 Pay includes bonuses, commission, holiday pay or, as the regulations state, ‘other emoluments referable to the employment.’

 However, the definition of pay does not include:

  •  occupational sick pay
  • pension
  • any allowance or payment made in connection with the worker’s retirement or as compensation for loss of office
  • payments in relation to maternity or paternity or adoption leave
  • any payment arising from the worker’s redundancy
  • any bonus not attributable to the amount or quality of the work done by the worker to encourage loyalty or reward long term service
  • payment for time off for trades union activities
  • a guarantee payment
  • any payment relating to an agreed loan or advance payment of wages
  • expenses
  • any payment in relation to a ‘financial participation scheme’ (e.g. relating to shares, share options or profit sharing).

 Access to Employment

 During the period of his or assignment the agency worker has the right to be informed by the hirer of any ‘relevant’ vacant posts with the hirer, and to be given the same opportunity as a comparable worker to find permanent employment with the hirer.

 Right to Receive Information

 The regulations contain procedures which the worker can follow to request a written statement from the agency or the hirer if the worker believes that his or her rights under the regulations have been infringed. 

 Unfair Dismissal / Detriment Claims

 An agency worker who is an employee can make a claim for unfair dismissal if he or she is dismissed for

  • making a complaint to a Tribunal under the regulations
  • giving evidence in connection with proceedings made under the regulations
  • making a request for a written statement
  • doing anything under the regulations ‘in relation to a temporary work agency, hirer or other person’
  • alleging a breach of the regulations
  • refusing to forgo a right under the regulations
  • because the work agency or hirer believes that he employee has done or intends to do one of the above.

 An agency worker (both employees and ‘workers’) can make claims if they suffer a detriment for doing one of the above.  In the case of a worker a detriment can include the termination of his or her contract.

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