Agency workers – rights and obligations

For employers, what is most attractive about using agency workers is that there are fewer obligations than when employing permanent staff. 

But is it all pros and no cons? What are their rights and what are your obligations?

Pros

Agency workers can step in at the last minute and provide cover for sickness, family-related leave or absences for unforeseen or emergency matters. Alternatively, they can help a business respond to a seasonal rush or a sudden increase in demand.

They can also cover a position while you find a suitable permanent option or provide a niche skill within your business that your other employees simply do not have.

Cons

However, it can be an expensive option because you need to pay agency fees and commission.

It can also affect team morale. If there are job openings and employees see that they are being passed over for external candidates, this may cause tension within the team.

Rights

Most will be considered a worker; therefore they are entitled to certain rights, such as the National Minimum Wage, holiday pay and protection against unlawful deductions from wages.

If they fulfil the eligibility requirements, they may be entitled to maternity pay, paternity pay and Statutory Sick Pay.

The law provides agency workers with rights from their first day of work on an assignment and after 12 weeks in the same job.

Day one rights

  • From their first day of work, they should be given access to collective facilities provided by the employer to their direct hires. This includes access to the staff canteen or common room.
  • From the beginning of their work with you, they have the right to be notified of any relevant permanent vacancies.

Rights from week 12

The law gives agency workers who have been doing the same job for the same hirer for 12 weeks equal terms and conditions to a comparable employee. This covers basic pay, annual leave, duration of working time and rest breaks.

The law also protects them from abuse. If an employer is repeatedly only providing 11 week assignments to circumvent their access to rights after the 12 week qualifying period, they may face claims in an Employment Tribunal.

Obligations

The basic premise is that it is the agency that has the responsibility to pay the worker and ensure that they receive their rights.

This does not leave you off the hook. You still have certain duties towards them, such as providing them a safe working environment and notifying the agency of your company’s terms and conditions to ensure that the agency worker gets equal treatment after the 12 week qualifying period.

For further advice on agency workers, contact your Employment Law Adviser.

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