The Agency Workers Regulations 2010 came into force on 1 October 2011.

The Regulations are intended to ensure equal of treatment between agency workers and their counterparts who are engaged as employees after completing a 12 week qualifying period.

The rights of agency workers are divided between "Day One" rights and those that they are entitled to after the 12 week qualifying period.

"Day One" rights

These rights apply from day one of the assignment. These include the right to access collective facilities and amenities (such as use of a car park or canteen) and information of vacancies.

It should be noted that where there are pre-conditions for entitlement to collective facilities for employees then these will apply equally to the agency workers (e.g. where there is a waiting list for a car parking space the agency worker has to join the waiting list in the same way).

Rights accrued after a 12 week qualifying period

Agency workers are entitled to the same "basic working and entitlement conditions" as employees who have been engaged directly, and include:

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

To consider what the basic working entitlement and conditions are, you should refer to the standard contracts of employment, any pay scales, pay structures that may be in place and also your company handbooks and/or any relevant collective agreements.

Calculations of qualifying period

The agency worker must work in the same role for a continuous period of 12 calendar weeks during one or more assignments. The continuity of the qualifying period will be broken by:

  • starting a new assignment;
  • starting a new, substantively different role; or
  • a break of at least six calendar weeks between assignments.

In those circumstances the agency worker will have to start accruing their qualifying period again.

The continuity of the qualifying period can be suspended when there's a break:

  • for any reason which is no more than six calendar weeks;
  • of up to 28 weeks because the agency worker is incapable of work because of sickness or injury;
  • which is for the purpose of taking leave, including annual leave, to which the agency worker is entitled;
  • of up to 28 weeks for jury service;
  • caused by a planned shutdown of the workplace (for example, at Christmas); or
  • caused by a strike or industrial action.

In these circumstances the qualifying period would suspend and continue on the agency worker's return to work.

Continuity will continue to accrue where a break is due to maternity or paternity leave.

Anti-avoidance provisions

As with any new legislation, the government has attempted to close any loopholes. An example of a prohibited structure would be when the agency worker has:

  • worked in more than two roles during an assignment and on at least two occasions has worked in a role that was not the "same role" as the previous role, and
  • the most likely explanation for the structure of the assignment(s) is to prevent the agency worker from being entitled to the right to equal treatment under the Regulations which, but for the structure, the worker would have been entitled to.

If an Employment Tribunal finds that a prohibited structure exists then an award of up to £5,000 can be made.

Information requests

If an agency worker believes that there has been a breach of the Regulations, he or she is entitled to request information from their Agent (i.e. the company or organisation that supplied them).

Enforcement and remedies

If an agency worker believes that there has been a breach of the regulations he or she can make a complaint to the employment tribunal within three months of the alleged breach.

If an employment tribunal upholds the complaint then it can make a declaration regarding the rights of the agency worker and/or an order for compensation. There is no cap on the amount that may be awarded, however the Tribunal is required to make a minimum award of 2 weeks wages where there has been a breach of the right to equal treatment.

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