Rights Relating to Agency Working
Your general rights as an agency worker are governed by the Conduct of Employment Agencies and Employment Businesses Regulations 2003 and the Employment Agencies Act 1973.
We do not advise you to opt out of these regulations as you might be asked to do by other organisations.
Remaining protected by these regulations will not impact your employment status and should not be considered as a factor in assessing the treatment of your income under IR35.
As an agency worker, your basic rights, which Red Snapper will uphold, are as follows:
- Written terms and conditions stating your expected rate of pay, the type of work your agency will try to find you, length of notice and other relevant details.
- Pay for any work you have undertaken, even if your agency hasn’t been paid by the hiring company.
- Written details of the job when you are offered a position, including who you will work for, the first day of work, how long they may want you to work and the amount of money you will earn.
- The freedom to end an assignment without penalty.
- The option of accepting a permanent job with a company where you worked as an agency worker. A fee may be payable by the hirer to the agency in some circumstances. You should not be charged a fee for this or suffer any form of penalty.
- The freedom to register with other agencies.
As an agency, we cannot and will not:
- Charge fees for finding you, or seeking to find you, work.
- Make you use fee-paying services as a requirement for finding you work.
- Deduct money for protective equipment or clothing, unless you have agreed to this in writing.
- Disclose information about you to anyone without your consent, unless it is for one of the following legitimate reasons:
- The purpose of finding you work.
- Legal proceedings.
- A professional body that you are a member of.
- The Employment Agency Standards inspectorate.
- HMRC, in certain circumstances.
Agency Workers Rights
These rights are enshrined in the Agency Workers Regulations 2010. An agency worker who is within the remit of AWR accrues rights relating to pay and working patterns if they work with the same employer for a 12-week period, which can include breaks for certain reasons.
An agency worker is someone who is supplied by a temporary worker agency to work temporarily for and under the supervision and direction of a hirer. This definition includes individuals working on the agency PAYE scheme, through an umbrella or a personal service company.
Day one entitlements
As the name suggests, these entitlements must be available to the agency worker on day one of the assignment. The entitlements relate to on-site facilities and access to existing vacancies.
The hirer must make collective on-site facilities available to its agency workers, such as canteens and crèches. It should be noted that agency workers only have equal rights to these facilities and any matters such as waiting lists also apply equally. Amenities involving a loan or contractual relationship such as season ticket loans or subsidised club membership are excluded from the entitlements, as they are considered to be associated with a long-term employment relationship.
The hirer is obliged to make all agency workers aware of existing vacancies at their organisation. This requires the worker to have the same access to the information as their permanently employed peers.
These entitlements are afforded to any agency worker after they have completed 12 weeks working in the same job. The following conditions apply when calculating the working week:
- Any part of a week that is worked counts as a working week for the count (even if it’s only one day)
- A change of agency does not cause a break in the 12-week count
- The agency worker may take a break from the position for any of the following reasons and the 12-week count will not be broken
- Any period of less than six weeks
- Time off for public duty, such as jury service
- Certified sick leave of 28 weeks or less
- Statutory or contractual maternity, adoption or paternity leave
Once the 12-week qualifying period has been achieved, the agency worker is entitled to receive, at least, the same pay and working conditions as a peer within the hirer’s organisation. If a like-for-like employee or job role is not available to make a fair comparison, pay scales and benefits outlined in company manuals and collective agreements should be taken into consideration.
When considering parity with regards to pay and benefits, the regulations specify that pay is ‘any sums payable to a worker of the hirer in connection with the worker’s employment.’
This definition specifically includes:
- Holiday pay
- Shift allowances,
- Overtime rates
- Vouchers with a fixed monetary value
- Allowances for unsociable hours
- Bonuses that are directly attributable to the quality or quantity of work done by the agency worker
The regulations stipulate that these workers are not entitled to items of remuneration associated with the status of a long-term employee, so they specifically exclude:
- Sick pay
- Company pension schemes
- Share options and other equity-based schemes
- Health / life insurance
- Bonuses based on organisational or company performance
- Claims for unfair dismissal
- Redundancy pay
- Maternity leave
It is the responsibility of the agency to ensure that reasonable steps have been taken to achieve the ‘equal’ treatment of their agency workers. It is also the responsibility of the agency to ensure that the workers are informed of their qualification under the 12-week rule.
That said, the regulations do recognise the interconnected relationships that exist between the client, agency and third parties, such as master vendors and umbrellas. They will hold all parties accountable for any obstruction to the information flow that enables the agency to ensure equal terms are being offered to any agency worker exceeding the 12-week qualifying period. The hirer is, therefore, obliged to provide the agency with the full information required in a timely manner.
Last edited: 22nd April 2021Back to top ↑