UK: Agency Worker Regulations

Last Updated: 9 August 2011
Article by Michael Bradshaw

The Agency Workers Regulations 2010 (the Regulations) will come into force on 1 October 2011. Despite the long lead in time for these Regulations (the legislation process effectively started in 2008) many organisations have not yet prepared themselves for the new rules. This is not least because the Government guidance was not finalised until May 2011.

The Regulations will apply to the supply of temporary agency workers by agencies but not the supply of candidates for permanent employment. The definition of "agency" covers the classic temporary work agency – an "employment business". It also covers other third parties who provide temporary workers and whether acting as intermediaries where an "agency" is involved or not. It will therefore cover umbrella contract arrangements.

The definition of a temporary agency worker is a worker who is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and has a contract with the agency that is a contract of employment or a contract to perform work or services for the agency.

Workers who are genuinely self-employed will be outside the scope of the Regulations. Determining who is genuinely self-employed will involve the usual employment law analysis and having a personal services company will not in itself be sufficient.

Direct hires by the hirer will not be covered by the Regulations and that is whether they are temporary workers, casual staff or contractors (without a personal services company). However, if a third party is involved in providing such workers then the arrangement is likely to be caught by the Regulations.

The Regulations provide for equal treatment in certain respects after a 12 week qualifying period, as well as other rights from day one. However, there is no general protection against "less favourable treatment" under the Regulations, as with the part-time worker and fixed term employees regulations. The Regulations also do not change the status of agency workers or give them more general employment rights.

Right to equal treatment

After a 12 week qualifying period, agency workers will be entitled to the same basic working and employment conditions as they would have enjoyed if hired directly by the hirer. The principle of equal treatment is limited to: pay, duration of working time, length of night work, rest periods, rest breaks and annual leave. "Pay" has a wide definition and will include commission, bonuses attributable to the amount or quality of work done, and holiday pay. Exclusions from the definition of pay include: sick pay, pension arrangements, maternity, paternity or adoption leave pay, redundancy payments and financial participation schemes.

An agency worker and the temporary work agency may also enter into a "derogation contract" which would have the effect of disapplying the right to equal treatment to pay (but only pay and not working time). Such a contract must comply with certain rules and, for example, must provide for at least 4 weeks pay at a prescribed minimum level, between assignments.

The 12 week qualifying period

The right to equal treatment does not apply until an agency worker has undertaken the same role, whether on one or more assignments, with the same hirer over a period of 12 "continuous" calendar weeks.

There are certain breaks in the assignment where continuity will be "suspended" so that the agency worker will be able to count the period prior to the absence towards the qualifying period (although not the period of absence). These are:

  • where the break is not more than six weeks;
  • sickness absence of up to 28 weeks (other than related to pregnancy – see below);
  • statutory/contractual time off – for example annual leave;
  • jury service of up to 28 weeks;
  • where there is a temporary break in the need for
  • workers for a set period, such as teachers during school holidays;
  • if there is a strike, or other industrial action at the place of work.

In other cases, continuity will continue to accrue during the absence. This is if:

  • the worker is absent for reasons related to
  • pregnancy or childbirth, for a protected period of up to 26 weeks after the birth of the child; or
  • if the worker is absent on contractual or statutory maternity, paternity or adoption leave.

In these cases the assignment is deemed to continue during the absence, for the intended duration of the assignment or the likely duration.

Subject to anti-avoidance provisions, any other break of more than 6 calendar weeks will break the 12 weeks required and restart the clock.

The time that counts towards the qualifying period can also be broken if the agency worker starts a new assignment with the same hirer where the "work or duties that make up the whole or the main part of that new role are substantively different from the work or duties that made up the whole or main part of the previous role". In order for this to apply, the hirer must inform the agency that there is a new role and provide written details of it.

Anti-avoidance provisions seek to prevent abuse. These will apply where the hirer or agency structure 2 or more assignments in a way to avoid the equal treatment provisions applying – or at least that it is satisfied that this is the most likely explanation. An employment tribunal will be able to make an additional award of up to £5000 where a hirer and/or agency have been found to be in breach.

Applicable terms

Subject to the qualifying period, the agency worker will be entitled to the basic working and employment conditions ordinarily included in contracts of employment with the hirer for such employment. These might be found in standard terms of employment, a staff handbook or a collective agreement, or even through custom and practice. Alternatively, if the agency worker is employed on the same basic working and employment conditions of a directly recruited comparator then the Regulations may be "deemed" to have been complied with. The comparator here is an actual comparator who is still in employment at the time of the breach. The comparator's terms must also be terms that are ordinarily included in the contracts for such employment.

Day 1 rights

Agency workers will also have certain "day 1" rights which are not subject to the 12 week qualifying period. Liability for these rights will lie with the hirer.

The agency worker will have the right to be treated no less favourably than a comparable employee (or worker) in relation to access to collective facilities and amenities, such as a canteen, childcare facilities and the provisions of transport services. It may be possible for a hirer to objectively justify a failure to comply with this. The agency worker will also have the right to be informed of vacancies in the hirer's organisation as per a comparable employee (or worker).

Pregnancy and maternity

There will also be particular equal treatment rights for agency workers who are pregnant or are new mothers. They will have the right to temporary changes to a role or alternative work, as well as paid suspensions, due to health and safety risks identified through a risk assessment. There will also be the right to reasonable paid time off for antenatal appointments. These rights only apply after the 12 week qualifying period.

Liability and information

Claims under the Regulations will be brought in the employment tribunals. The hirer will be liable for a failure in respect of day 1 right and may also be liable for equal treatment liability, to the extent it is responsible. This is because a tribunal can make awards against both the hirer and the agency. An agency will have a defence if it took reasonable steps to obtain the necessary information from the hirer and acted reasonably in determining the agency worker's rights. The hirer may be liable where it is found to be responsible for the infringement, for example by failing to provide the required information on comparable terms and conditions.

A tribunal may make an award of compensation and also make recommendations as to steps to be taken to overcome an adverse effect on the worker. Compensation for detriment (or dismissal) is also available.

An important practical aspect of the Regulations will be the requirement for information to be passed between the hirer, the agency and the worker. In particular the agency worker can make written requests for information relating to basic working and employment conditions and comparators from the agency (or the hirer in respect of day 1 rights). The agency will have 28 days to provide the information and if it is not provided, the agency worker can then request information from the hirer. Inferences can be drawn from a failure to respond or an inadequate response.

A requirement to provide information on agency workers will also be included in existing legislation on TUPE, collective redundancies and collective bargaining.

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
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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