Agency Workers' Rights: Employer's Guide

Agency workers have significant legal protections. Understanding these helps you avoid liability when using temporary staff.

Who Is an Agency Worker?

An agency worker is someone who:

• Has a contract with a temporary work agency
• Is supplied by that agency to work for a hirer
• Is under the supervision and direction of the hirer

Not Agency Workers

• Genuinely self-employed contractors (no supervision/direction)
• Workers supplied for managed services (agency manages the work)
• Workers seconded between group companies

Day One Rights

From the first day of an assignment, agency workers have rights to:

Access to Collective Facilities

Same access as comparable permanent employees to:

• Canteen
• Staff room
• Childcare facilities
• Parking
• Transport services

Vacancy Information

• Must be told about any relevant vacancies
• Same information as permanent staff
• Opportunity to find permanent employment

Working Conditions

From day one under Working Time Regulations:

• Rest breaks
• Night work limits
• Maximum weekly hours

The 12-Week Qualifying Period

What Triggers Equal Treatment

After 12 weeks in the same role with the same hirer:

• Pay must equal comparable employees
• Basic conditions must match

Counting the 12 Weeks

The clock starts from day one of an assignment.

Weeks count if:

• Worker is working
• Worker is away but assignment continues

Weeks pause but don't reset if:

• Sickness (up to 28 weeks)
• Annual leave
• Jury service
• Workplace closure (e.g., Christmas shutdown)
• Strike or lockout

Clock resets if:

• Assignment genuinely ends
• Worker starts substantively different role
• Gap of more than 6 weeks between assignments

Anti-Avoidance Rules

Structure designed to prevent reaching 12 weeks may be unlawful:

• Rotating agency workers before 12 weeks
• Creating artificial breaks
• Changing role title but not substance

Tribunal can look at substance, not just form.

Equal Treatment After 12 Weeks

Pay

Agency worker must receive same as if directly recruited, including:

• Basic pay
• Overtime rates
• Shift allowances
• Payment for annual leave
• Vouchers with monetary value

Not Included

• Occupational sick pay
• Occupational pension
• Occupational maternity/paternity pay
• Redundancy pay
• Bonuses not linked to individual performance

Other Working Conditions

After 12 weeks, same treatment regarding:

• Duration of working time
• Night work
• Rest periods
• Rest breaks
• Annual leave

Who Is the Comparator?

Finding a Comparable Employee

The comparator is a direct employee who:

• Works for the same hirer
• Does the same or broadly similar work
• Works at the same site (or same organisation)
• Has similar skills and qualifications

If No Comparator Exists

If no comparable employee:

• Consider what terms would apply if directly recruited
• Look at recruitment policies and pay scales
• May need to construct a "hypothetical comparator"

Responsibilities

The Agency's Responsibilities

• Ensure equal treatment (pay and conditions) after 12 weeks
• Obtain information from hirer about comparable terms
• Take reasonable steps to verify information
• Pay the worker correctly

The Hirer's Responsibilities

• Provide accurate information to agency about comparable terms
• Provide day one rights (facilities, vacancy information)
• Not structure assignments to avoid 12-week threshold
• Liable for day one rights breaches directly

Information Requests

Agency worker can request written statement of:

• Relevant information about comparable employees
• Information used to determine their conditions

Response must be provided within 28 days.

Pay Between Assignments (Swedish Derogation - Abolished)

Note: The "Swedish derogation" (pay between assignments contracts) was abolished in April 2020. These contracts are no longer valid.

All agency workers now have equal treatment rights after 12 weeks, regardless of contract type.

Practical Implications

Before Using Agency Workers

Consider:

• What are your comparable employee rates?
• Will assignments last more than 12 weeks?
• Are you prepared to pay equal treatment rates?
• Have you informed the agency of comparable terms?

Information to Provide to Agency

• Pay rates for comparable roles
• Bonus structures (if applicable)
• Working time arrangements
• Collective facilities available
• How to access vacancy information

Monitoring Assignments

Track:

• Start dates of assignments
• Any breaks in assignment
• When 12-week threshold approaches
• Changes in role or responsibilities

Common Scenarios

Scenario 1: Long-Term Assignment

Agency worker starts assignment covering maternity leave (expected 12 months).

After week 12: Must receive equal pay and conditions.

Action: Inform agency of comparable rates before week 12.

Scenario 2: Rotating Workers

Hirer uses agency workers for 11 weeks, then swaps them.

Risk: If pattern suggests avoidance, tribunal may find breach.

Better approach: If genuinely need temporary cover, accept equal treatment obligations.

Scenario 3: Different Site

Agency worker works at one site for 8 weeks, moved to another site for same hirer.

Result: Clock continues - same hirer, broadly same role.

Scenario 4: Role Change

Agency worker starts as administrator, then moves to project coordinator role.

Question: Is it substantively different?

If yes: Clock restarts. If no (just title change): Clock continues.

Enforcement

Worker's Options

Agency worker can:

• Request written statement of comparable terms
• Bring tribunal claim for breach
• Claim automatic unfair dismissal (if employee of agency)

Tribunal Claims

• Claim against agency for pay/conditions breach
• Claim against hirer for day one rights breach
• Time limit: 3 months from breach

Remedies

• Declaration of rights
• Compensation (minimum 2 weeks' pay for pay breach)
• Recommendation to agency/hirer

Record Keeping

What to Keep

• Assignment dates and duration
• Information provided to agency
• Comparable employee terms
• Any breaks in assignment
• Communications about equal treatment

How Long

Keep records for the duration of the assignment plus at least 6 years (limitation period).

Checklist for Hirers

Before Assignment Starts

• Understand day one obligations
• Ensure facilities are accessible
• Set up vacancy notification process
• Inform agency of comparable terms

Ongoing

• Track assignment length
• Monitor approaching 12-week threshold
• Update agency if comparable terms change
• Don't structure to avoid obligations

After 12 Weeks

• Confirm equal treatment in place
• Review if pay rates need adjustment
• Maintain accurate records