Agency workers

Contents
1. What is an agency worker? 2. Your rights as an agency worker 2.1. As an agency worker, are you entitled to the same benefits as permanent staff? 2.2. What to do if your agency isn’t giving you work 3. The rules governing agencies 3.1. What to do if your agency breaks the rules

As an agency worker, it’s important to know your rights and the rules about the way agencies should treat you. The rights that agency workers have depend on whether they are categorised as employees or workers. For more information, see our ‘Employees, workers and the self-employed’ section.

Agency workers work through an agency which finds them jobs. The firm that the agency worker will be working at pays a fee to the agency, and the agency pays the worker’s wages.

There are several advantages to being an agency worker – you can:

• Use it as a stepping stone to the job you want
• Use it as a way if entering or re-entering the job market
• Use it to work more flexibly to help balance domestic responsibilities
• Move jobs easily and with little or no notice
• Try out different kinds of work

As an agency worker, you are automatically covered by the National Minimum Wage, working time legislation and health and safety and social security provisions. However, because of the flexibility of agency work and the variation of the terms of the arrangements between the agency worker, the agency and the firm that the worker is working at, determining what their status is, i.e. whether the agency worker is an employee or worker, can be a complex exercise. Every case needs to be examined individually.

There are important differences between temporary agency workers, and those who are hired on fixed-term contracts. If you’re an agency worker, your contract is normally with the agency, which must pay you even if the hiring company hasn’t paid them. However, if you sign a fixed-term contract with the hiring company, the agency isn’t responsible for paying you, and you have different rights. Make sure you know what kind of contract you’re signing so that you’re clear about your employment status.

Agency workers are usually considered to be ‘workers’, not ‘employees’. Workers’ main rights are:

• Paid holiday, rest breaks and limits on working time
• No unlawful deductions from wages
• The National Minimum Wage
• Not to be discriminated against under any of the equality legislation

If you’re an agency worker, you have the right to maternity or paternity pay, but not maternity or paternity leave. You can get Statutory Sick Pay if you’ve worked for the same agency for more than three months. HM Revenue and Customs (HMRC) can help decide what you are entitled to.

Agency workers can sometimes (in very limited circumstances) be classed as ‘employees’; for example, where an agency worker has worked for the same firm for many years and has been treated in the same way as an employee by that firm. If there’s a dispute about whether or not you’re an ‘employee’, an Employment Tribunal (Industrial Tribunal in Northern Ireland) will decide on the facts of the case. There are various European and domestic initiatives aimed at clarifying the uncertain position of agency workers, and ensuring they are afforded the same protections as other employees.

Agency workers are treated the same as other employees or workers for tax (PAYE) and National Insurance purposes, but there are special rules on how to work out their status.

If your circumstances as an agency worker mean that you’re categorised as a worker as opposed to an employee, you may not get the same perks as permanent employees and may not get the same holiday allowance. You should check your contract to see what you might be entitled to, or talk to your agency.

It’s up to agencies to decide who they put forward for work, and agencies tend to have more people on their books than they usually need in order to cover peaks in demand. Unless you have an agreement with your agency where they guarantee to find you work, it might be difficult to force them to give you work, although it’s worth investigating whether your agency is unlawfully discriminating against you, or breaching your statutory rights. Raise the matter with your agency; if the reason is a bad reference from an employer, they should explain this and let you have your say. If the reason is that there is not enough demand for the sort of work you want, you might consider broadening the range of work that you are prepared to do. If this fails, try joining another agency – there’s no limit to the number you can register with.

Agencies are subject to a number of regulations; they:

• Can’t charge you a fee
• Can’t make you use fee-paying services (e.g. CV writing) as a requirement for finding you work
• Can’t stop you from taking a permanent job with a company where you temped, and there are limits on the fees they can charge the company (sometimes called ‘temp to perm’ fees)
• Have to give you written terms and conditions
• Can’t stop you registering with other agencies

Finally, if they’re an ‘employment business’ – a temp agency - they must pay you, even if they haven’t been paid by the firm you’re working for.

Employment agencies can be fined and banned from operating for up to 10 years by an Employment Tribunal (Industrial Tribunal in Northern Ireland), if they don’t meet proper standards.

If you think your agency has broken any of the rules, contact the Employment Agency Standards’ Pay and Work Rights helpline on 0800 917 2368 (8.00 am to 8.00 pm Monday to Friday). The EAS Inspectorate investigates every complaint it receives.

If the agency has breached the terms of your contract, you can take action yourself through the courts. If the agency makes an unlawful deduction from your pay, you can complain to an Employment Tribunal (Industrial Tribunal in Northern Ireland).