If you use temporary agency workers in your business you need to be aware of the various rights they have. These are quite complex and it may be sensible to take further advice if you use agency workers regularly, but the following is an overview:
Employment status of agency workers
Workers supplied through an agency may be employed by the agency or by an intermediary or umbrella company, or they may be under a contract for services and as such be classed as ‘workers’ for the purposes of employment rights.
This means that they will not be considered employed by you as the hirer, however you need to be aware that sometimes agency workers claim that they have employment status in order to benefit from additional rights conferred on employees. They may claim they are employees of the agency they work through or of you the hirer.
As with any question of determining employment status, the facts of the situation are crucial – a tribunal will examine what is happening and if the relationship looks like one of employment there is a risk. This is more likely to become an issue if you have agency workers with you for a long period of time, and they become part and parcel of the team, which is why it is not advisable to use agency workers for long periods, only for short term project/holiday or absence cover/temporary increases in demand or similar.
Agency Workers Regulations 2010
These regulations don’t give agency workers employee status, but they do confer on them a number of specific rights as follows:
1. Collective facilities and amenities
From day one of their engagement agency workers cannot be treated less favourably than employees in respect of access to collective facilities in the workplace. This includes things like canteen or kitchen facilities, washing facilities and common staff areas. Anything that employees have access to in terms of facilities provided by the hirer is likely to be covered.
2. Information about vacancies
Agency workers must be informed of any vacancies so that they have the same opportunity as employed staff to apply for permanent employment with you.
3. Family friendly rights
Agency workers who are pregnant have the right to take paid time off for antenatal appointments, and fathers/partners are entitled to take unpaid time for two antenatal appointments also, in line with the rights afforded to employees. Similarly, the same rights in respect of adoption appointments as employees are entitled to also apply to agency workers.
4. Equal basic conditions of employment
After completing a 12 week qualifying period, agency workers are entitled to the same treatment in basic working and employment conditions as if they’d been employed directly. Basic conditions includes pay, working time, night work, rest periods and holiday.
The right to equal treatment in respect of pay does not include things like occupational sick pay, maternity or other family leave pay, pension, redundancy pay or bonuses not directly related to their work (such as long service awards or similar).
If the worker has a permanent contract of employment with the agency and this contract meets a number of requirements, then the requirement for you as the hirer to pay agency workers the same as employees doesn’t apply. This is known as the Swedish derogation.
As you can see, the laws around the rights of agency workers are somewhat complex, so if you use agency workers regularly, are not sure whether pay/benefits you offer employed staff should apply to agency workers, are not sure how to handle a claim an agency worker is making for employment rights or are concerned about the employment status of the workers you use, you should seek advice specific to your situation.
If you would like more information about using agency workers or about the Agency Workers Regulations and how they affect your business, please get in touch.