UK: Still Time To Get Ready For Agency Workers Regulations

Last Updated: 16 November 2011
Article by Charlotte E. Walker-Osborn and Laura Friend

What? We are aware that many agencies and hirers have yet to respond to the Agency Workers Regulations 2010 ('the Regulations') or are only just starting to do so. Others may mistakenly assume that the Regulations do not apply to their circumstances.

So what? For further details on the obligations imposed by the Regulations, please see our guide Responding to the Agency Workers Regulations 2010.

When? The Regulations will come in to force on 1 October 2011 and in to full effect from 25 December, as workers begin to satisfy the 12-week qualifying period.

Clearly, the first issue to address is whether the Regulations apply, ie by identifying the nature of your temporary labour. If you believe they do (or even may) apply, it is important to understand where any difference in treatment arises, as between agency workers and direct recruits. This will help to identify areas of greatest risk but also suggest certain options you may wish to consider. The agencies with whom you contract will be likely to work with you in this but there are questions you can (we would say, should) be considering in advance.

Do the Regulations apply?

Be careful. The Regulations apply to any situation where workers are supplied to work under the supervision and direction of the hirer. They are not limited to those provided by an employment agency as you might commonly understand it. For example, if your company is part of a group and employees engaged by one company undertake work for others, this could give rise to an agency worker scenario. Furthermore, some of the possible arguments or mechanisms for avoidance that we have come across are unsafe and are unlikely to comply with legal requirements.

Consider also the period of engagement. If assignments are very short term (ie of less than 12 weeks' duration) and are infrequent, the workers may not qualify for the majority of rights under the Regulations (excepting day one rights, such as access to facilities). But watch for repeat assignments: re-engaging such workers within a period of six weeks or on more than two occasions (without a genuine business reason, such as seasonal need) is likely to be seen as unlawful avoidance and can attract a financial penalty.

Where are your key risk areas?

Identify comparator workers

Consider issues such as how many agency workers you engage and the roles in which you place them. Who and where are the potential comparators?

What are the differences in pay, holidays and other benefits?

Many benefits associated with employment status are excluded from the Regulations but this should be clarified. Consider your pay and benefits structure. For some, this will be a straightforward comparative exercise but, for those with many and varied grades or pay scales, it may be more complex. Are there differences in pay and benefits between the agency workers you engage and employees undertaking the same work?

What on-site or off-site facilities do you offer employees?

Access to a subsidised gym or to staff discounts are often emotive areas for any organisation and, in the main, are not available to agency workers as of right under the Regulations. It is nonetheless essential that hirers carry out a thorough review of what they offer staff. Applying the Regulations, not all outcomes will necessarily be as you expect for agency workers. These rights are also not subject to the 12-week qualifying period but apply from day one of assignment.

Possible solutions

Leaving aside the inevitable option of revisiting your use of agency labour generally, with a view to mitigating the effects of the Regulations, if your answers to the above questions highlight disparity between those workers and your comparator employees, what can you do?

Changing comparators

If your risk assessment identifies large numbers of comparators and potentially significant pay differentials, it may be possible to narrow the areas of work in which you engage agency labour, thereby reducing the pool of comparators. It may even be possible to use agency workers in unique roles for which there is no comparator. Tread warily , however. Unless handled extremely carefully, this may not result in the desired outcome. It will also not alleviate responsibility for offering terms that are commonly available to employees.

Differences in pay rates

Under the Regulations, following 12 weeks' service, agency workers will be entitled to equality in basic terms and conditions including pay (which includes some bonuses). For some organisations, the preferred option will be to introduce parity of pay but, for others, this will not be operationally or financially feasible.
Other options may include:

  • Introducing a new-starter pay scale. Adopting this for new recruits to the business can result in the same rates of pay for agency workers undertaking the same role.
  • 'Swedish derogation'. An alternative business model that has been widely talked about. The Regulations specifically make provision for agencies to employ agency workers and guarantee their pay (at reduced level) between assignments, subject to certain limitations and requirements. This is a more expensive option for the agency (which acquires the liabilities of an employer) but, through negotiation, and for the appropriate sector or class of worker, could offer a viable alternative for both agencies and hirers.

What about bonuses?

Pay that is genuinely offered as recognition of long service by employees or as an incentive for loyalty is generally excluded from the Regulations. Most other elements of pay, including many contractual bonuses paid to employees (other than for those two clear reasons) will apply to agency workers.

An option may be to:

  • Revise a bonus (and similar) scheme. Revising schemes to make clear the purpose of payment may be an option, providing this does not breach pre-existing contractual terms. Consider, however: if a bonus is intended to incentivise, might that be reason enough to extend it to agency workers also?

Access to facilities

The Regulations provide that, from day one of an assignment, an agency worker must be treated no less favourably than a comparator in relation to collective facilities, such as transport services, shower facilities, mother and baby room, prayer room and canteen facilities. For some organisations, this will not present an onerous or prohibitively expensive obligation. Even so, cost alone is unlikely to present a legitimate ground upon which to justify refusing access.

Issues to consider include:

  • The right is to the same access as comparable employees. Any qualifying condition, such as a waiting list or service requirement, will therefore apply to agency workers too.
  • A right of 'access' is not the same as 'equal rights in respect of'. Agency workers do not, therefore, accrue automatic right to any subsidy that the business offers, such as subsidised meals. Whether it is administratively workable to operate differing pricing will depend on the facility. It is also important to bear in mind how visitors would be treated, as singling agency workers out alone could potentially give rise to detrimental treatment.
  • Access to information about vacant posts at the hirer is a right to information only and does not require any change in selection process or favourable treatment to agency workers.

Commercial contracts

There is limited opportunity for organisations to review and revise their terms and conditions with agencies. Some will need to do little more than tweak existing contracts (for example, where they are content that they have done what they can to review and mitigate the effect of the Regulations). Others may adopt a more radical approach and decide to consolidate or change supplier.

It is important that the contractual terms reflect what the parties believe the position to be in terms of risk, sharing information and apportionment of cost. If relationships with existing agencies are being ended, consider the terms of the current contacts. Do they contain notice provisions? What 'temp to temp' or 'temp to permanent' fees become payable (subject to compliance with the Conduct Regulations)?

Also, consider whether TUPE will apply to employed agency workers or the account manager employer of the agency.

Final thoughts

The above options are by no means exhaustive. Consider also the relevance (or appropriateness for your business) of an in-house staffing 'bank', managed service contracts or the engagement of genuinely self-employed workers (mindful in the latter case that the contract reflects the reality).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions