Agency workers: employment regulations

Agency worker: definition

An agency worker is someone supplied by a work agency to work temporarily for and under the supervision and direction of a hirer. An agency worker has either a contract of employment with the agency or any other contract to perform work and services personally for the agency.

Agency workers regulations

The Agency Workers Regulations 2010 give agency workers the entitlement to the same basic employment and working conditions as if they had been recruited directly, if and when they complete a qualifying period of 12 weeks. 

Agency work entitlements

From day one, all agency workers must have access to collective facilities and amenities eg drinks machines, prayer room, showers.

From day 1 all agency workers must also receive information about vacant posts within the Council so the individual is afforded the same access as a comparable worker to find permanent employment. Publicising vacancies on the intranet and notice boards meets this requirement. Managers should ensure that workers know where to access the information. This right does not apply in the context of genuine headcount freezes where posts are ring fenced for redeployment purposes or internal re-organising existing employees in order to prevent a redundancy situation. The council, as hirer, is responsible for providing equal treatment for day one rights and is liable for any breach of this entitlement.

Extended entitlements after 12 weeks in the same job 

Extended entitlements after 12 weeks in the same job with the same hirer relate to pay and other basic working conditions (duration of working time, rest breaks, rest periods, night work and annual leave).

An agency worker should receive the pay increment that would be payable if directly recruited by the council to perform the same job taking into account their skills and qualifications.

The council will be deemed to have complied with the regulations on equal treatment on basic working and employment conditions if the hirer identifies an appropriate comparator and treats the agency worker in the same manner.  Where there is no obvious comparator post the tasks will need to be job evaluated before the assignment commences.

Agency workers have the right to make a complaint to an employment tribunal if they believe they are receiving less favourable terms to comparable permanent employees.

The agency is initially responsible for ensuring equal treatment for agency workers after 12 weeks.  The regulations specifically provide for agencies to obtain relevant and accurate written information from the hirer about the basic working and employment conditions that are in force and details of any comparable employee.

Qualifying period

  • Normally 12 calendar weeks in the same role with the Council
  • Part weeks count
  • A break of 6 weeks is needed to break continuity
  • Qualifying period is paused where there is sickness, jury service, industrial action
  • Where a break is related to maternity, pregnancy, adoption or paternity leave the worker is deemed to continue in the same role for the duration of the original assignment 

Documentation on basic working and employment conditions

Agency workers terms and conditions comparison [PDF | 151KB] identifies basic terms and conditions and must be provided to the agency and agency workers prior to every assignment. Managers will need to identify anything that is different from standard working patterns.

The hiring manager is responsible for providing and evidencing that relevant information has been given to the agency and agency workers.