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Agency Workers – Does your business understand their rights?

The Agency Workers Regulations 2010 (“AWR”) are not often something which organisations give a lot of thought to.  Where a company (“End User”) needs a temporary worker, they might routinely sign up with an employment agency (“Agency”), sign the Agency’s terms and conditions, and utilise an agency worker on a temporary basis.

One might, quite fairly, take the view that the Agency will be on top of the rights to be afforded to the agency workers, and to an extent that is correct.  However, it is important to note that the End User can also be liable in certain situations.

While the AWR are not new, they are not often tested within the Employment Tribunal, and accordingly the recent case of Kocur v Angard Staffing Solutions provided some clarity on the ‘day one’ rights that an End User must offer the agency worker.

In simple terms, the AWR affords an agency worker with two sets of rights, Day One Rights and Week Twelve Rights:

  • Day One Rights – agency workers must be allowed access to the End User’s collective facilities and amenities including:
    • The canteen or food and drinks machines.
    • Childcare services, for example a creche.
    • Car parking or transport services.

In addition, they must have access to information about any job vacancies from the first day of their assignment. In terms of job vacancies, in the case of Kocur the agency worker was placed on assignment with Royal Mail.  Within Royal Mail there was a rule that those direct employees who already had permanent roles could apply for vacant roles ahead of agency workers.

The agency worker argued that the Day One Right to be notified of any vacancies at the End User included the right to apply for those jobs. The Court of Appeal rejected this argument and said that under the AWR there was no right to apply for vacancies, and while the AWR attempts to close the gap between rights afforded between permanent employees and agency workers, the court said that agency workers were not entitled to comparable entitlements in all respects.  Therefore, while in this case an agency worker had the right to information on available vacancies, the policy of allowing direct employees to apply before agency workers was held to be fair.

  • Week Twelve Rights – after twelve weeks at the same End User, an agency worker will be entitled to “the same basic working and employment conditions” as they would have been entitled to for doing the same job, had they been recruited by the End User directly.  This means they are entitled to comparable rights as direct recruits in respect of: pay, duration of working, night work, rest periods, rest breaks, and annual leave.

In terms of pay, the right to equal treatment to pay includes:

  • basic pay
  • holiday pay that’s in addition to the legal minimum
  • individual performance-related bonuses
  • commission
  • overtime pay
  • allowances for working shifts or unsociable hours

The right to equal treatment to pay does not include:

  • bonuses linked solely to company performance or to reward long-term loyalty
  • expenses
  • enhanced maternity, paternity and adoption pay and shared parental pay
  • company pension schemes
  • redundancy that’s more than statutory
  • sick pay that’s more than statutory sick pay
  • guarantee payments
  • season ticket loans
  • paid time off for trade union duties

The above position on when week twelve rights are afforded is simplified, and there are scenarios where several separate assignments can be joined to afford these entitlements. It is however important to note that a week still counts towards the 12-week qualifying period if the agency worker does not work because of:

  • pregnancy
  • childbirth
  • maternity leave which is taken during pregnancy and up to 26 weeks after the birth
  • paternity leave
  • adoption leave
  • shared parental leave

In terms of who is liable for failing to provide such rights, the End User is solely responsible for breach of Day One Rights.  However, for Week Twelve Rights liability is shared between the Agency and the Hirer dependent on the extent to which they are responsible for the failure.

If you would like any further information concerning the issues raised in this article, please feel free to contact the employment department at Berry Smith on 02920 345 511 or at employment@berrysmith.com.