All About Agency Workers

Emma Gross
20 December 2021

Agency workers are sometimes referred to as atypical workers or contingent workers.  

An agency worker’s contract will be with an employment agency, sometimes known as a recruitment agency, temporary work agency, staffing company or employment business. The agency will place them within the ‘hiring organisation’ for a period of work known as an ‘assignment’.  

Whilst on assignment, the hiring organisation assumes responsibility for directing their work. The worker may be deemed an employee of either the organisation or the agency, or they may not be classed as an employee at all. It is important for the worker to identify if they are classed as an ’employee’ or a ‘worker’ under employment status law. It affects what they are entitled to and what their obligations are. 

If the worker is self-employed and takes on an assignment through an agency, this could mean they are classed as an employee or worker for the duration of the assignment. 

Rights and Protections

As an employee or worker, there are a number of rights that are automatic and immediate, such as: 

  • protection against discrimination; 
  • National Minimum Wage entitlement; 
  • a minimum of 5.6 weeks’ holiday entitlement.

If the worker is an employee, they also have protection from being dismissed or experiencing any ‘detriment’ if they: 

  • reasonably believe being at work or doing certain tasks would put them in serious and imminent danger; 
  • take reasonable steps over a health and safety issue, for example complaining about unsafe working conditions; 
  • inform the employer about a health and safety issue in an appropriate way.

Agency Workers also have a number of rights under the Agency Workers Regulations. From the first day of an assignment, workers have the same right as direct employees of the hiring organisation to use any shared facilities and services. They should also be informed of any relevant vacancies in the hiring organisation during the assignment in order to be given the same opportunity as a comparable worker to find permanent employment with the hiring organisation. 

After passing the 12-week qualifying period, workers are entitled to the same working conditions and rate of pay as direct employees of the hiring organisation. Under the law this is called ‘the right to equal treatment to pay’. This includes basic pay, holiday pay that’s more than the legal minimum, individual performance-related bonuses, commission, overtime pay and allowances for working shifts or unsociable hours. 

If you’d like to know more about Agency Workers, how to structure hiring arrangements, or to discuss agency worker entitlements and obligations, please get in touch.

Emma Gross
Partner – Employment, Data Protection
Emma Gross is a Partner Solicitor at Spencer West. She specialises in Complex employment tribunal cases, data protection and the GDPR, negotiating settlements and advising on fair and reasonable redundancy procedures.