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There are 865,000 agency workers (or temps) in the UK. This figure amounts to a 30% increase from 2011 (source: The Resolution Foundation 2016.)

The Agency Workers Regulations 2010 give agency workers the right to ‘equal treatment’ for basic employment and working conditions, after 12 weeks.

Agency workers are classed as workers and not employees.

How to identify agency workers

Workers that work for you, but have an employment agency contract, are agency workers.

The following also indicates that someone’s an agency worker:

  • They’re provided by an agency to work with you on a temporary basis
  • You manage their work
  • They’re not self-employed

When is someone not an agency worker?

A person isn’t an agency worker if they:

  • Have found work through an agency but are self-employed.
  • Are on a managed service contract where the agency supplies a service (like cleaning) to you and manages the worker.
  • Work for an in-house temporary staffing bank, where you employ temporary workers directly and they only work for you.
  • Have found direct employment with you through an agency or by themselves.
  • Are on loan to you from another business.

Agency workers rights

Employment agencies responsibilities towards agency workers include:

  • Finding work for free, but the agency can charge for services like CV writing
  • Providing written terms of employment
  • Making available relevant details (e.g. the start date) with a job offer
  • Communicating changes to terms and conditions

Agency workers are entitled to the following rights from their first day of work:

  • The use of shared areas and facilities
  • Information about job vacancies, but this doesn’t mean they’ll be suitable to apply for these vacancies

When agency workers have worked with you for 12 weeks, they’re entitled to ‘equal treatment’, including:

  • The same pay as your permanent employees doing the same job
  • Paid annual leave
  • Automatic pension enrolment

Maximum weekly hours for agency workers

After agency workers have been with you for 12 weeks, they’re not obligated to work more than an average of 48 hours per week, under The Working Time Regulations 1998. They can sign an agreement with their agency to waive this right. You can’t insist that agency workers work longer shifts than comparable employees.

Sunday working for agency workers

Agency workers have to work on Sundays if it’s in their contract. They can’t be made to work on a Sunday unless they’ve agreed to this in writing.

How to calculate agency workers 12 week qualifying period

You should start counting agency workers 12 weeks period from their first day of work.

The following will pause the clock of the 12 week period:

  • A break of six weeks or less
  • Sick leave for up to 28 weeks
  • Annual leave
  • Jury service for up to 28 weeks

The 12 week period will carry on if agency workers take time off for:

  • Pregnancy
  • Giving birth (26 weeks)
  • Paternity leave
  • Adoption leave

Exceptions to equal treatment

If agency workers have signed a pay between assignments contract with their agency, they’ll be paid even when not in work. As a result, these agency workers won’t be entitled to equal pay, but their other rights will remain the same.

 

The Employment Appeal Tribunal case, Coles v Ministry of Defence (2015) found that agency workers are entitled to access information about job vacancies. But, permanent employees can be given special treatment to fill these positions.

It’s critical to be clear about the start and end of the 12 week qualifying period for agency workers. This information should be available at your fingertips in a safe place. The BrightHR Employee Hub stores your employee and worker records securely, with ease of access.  You’ll also get notifications of important dates including alerts about your agency workers’ 12 week period.

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If you are an existing customer please call 0800 783 2806 or email support@brighthr.com