As with most employers, recruitment agencies will usually provide agency workers with their rights automatically. However, the nature of agency work means there are special situations that make it useful for both the agency and the agency worker to have a general understanding of how these rights work in practice.
What rights an agency worker may qualify for will often depend upon their employment status.
- Self-employed status gives very few rights but considerable independence.
- Worker status gives some rights like holiday pay and sick pay.
- Employee status gives most rights, including rights against unfair dismissal.
For more information, go to ‘Understanding an agency workers employment status’ on the Agency workers article.
An agency worker will then qualify for their rights in the same way as any other worker or employee.
- Many rights start immediately, such as discrimination protection and National Minimum Wage entitlements.
- Other rights depend on minimum qualifying periods and/or other factors, such as requesting flexible working or receiving maternity pay.
- Some rights are specific to agency workers and begin either immediately or after working in the same role at the same hiring organisation for 12 weeks. The period is usually easy to calculate but if there has been a full week which has involved no work on the assignment, go to Calculating the 12-week qualifying period.
In many ways, an agency worker has the same pay rights as anybody to:
- receive the relevant National Minimum Wage and National Living Wage
- not have any unlawful deductions made from their pay
- be paid on time and by the agreed method
- receive Payslips.
However, there are some differences.
- An agency worker’s pay may vary from assignment to assignment – but it should be agreed before an assignment begins, and not be below the rate agreed in their terms and conditions and/or contract.
- Many agencies use timesheets. If a timesheet cannot be provided, the agency worker must still be paid and it is the agency’s responsibility to establish what hours were worked. An agency may only delay a payment to confirm what hours have been worked and only for a reasonable amount of time.
- An agency worker must still be paid on time by their agency, even where the agency has problems getting payment from the hiring organisation.
- After passing the 12-week qualifying period, an agency worker must receive the same pay as staff directly employed by the hiring organisation unless they are on a pay between assignments contract.
- The right to the receive the same pay includes: basic pay, holiday pay, individual performance-related bonuses, commission, overtime pay, allowances for working shifts or unsociable hours.
- The right to receive the same pay does not include: bonuses linked solely to company performance or to reward long-term loyalty, expenses, pensions, sick pay, redundancy pay, or maternity, paternity, shared parental and adoption pay.
In many ways, an agency worker has the same holiday rights as anybody.
- To be able to take a minimum statutory 5.6 weeks of paid holiday in each ‘leave year’ when they are working on an assignment. This builds up from the date of their first assignment and the leave year usually starts from this point too.
- Leave must usually be taken before the leave year ends.
- To request paid holiday from the agency in line with any rules the agency has about how much notice should be given. If there are no rules, the notice should be twice as long as the length of paid holiday requested.
- Leave requests may be refused but an agency worker must be allowed to take their full entitlement during each holiday leave year.
- To carry any untaken holidays over to a new assignment, or to be paid for that holiday if they leave the agency.
Additionally, after passing the 12-week qualifying period, an agency worker has the right to receive the same amount of holiday leave and pay as staff directly employed by their hiring organisation. Any holiday above the statutory minimum of 5.6 weeks can either be:
- Added to the agency worker’s holiday entitlement
- Paid on top of the hourly/daily rate and clearly itemised on each payslip
- Paid at the end of the assignment and clearly itemised on the final payslip.
The right to receive the same holiday pay does not apply to agency workers who have a pay between assignments contract.
In many ways, an agency worker has the same rights and responsibilities as anybody when they fall ill:
- To not work at their assignment when they are too ill to work
- To know who they must contact at the agency and the hiring organisation to about their absence, and that they must do this before a certain time wherever possible
- To provide a reason for the absence and a likely return to work date
- To receive Statutory Sick Pay if they qualify for it – more information is available at GOV.UK – Statutory Sick Pay (SSP).
Agency workers are not entitled to receive the same amount of sick pay as staff directly employed by their hiring organisation at any point.
An agency must auto-enrol all its agency workers into a pension scheme within three months of the start of the contract.
If an agency worker does not want to be enrolled into the agency’s pension scheme, they must contact the agency and the pension provider and opt-out of the scheme.
For more information, go to www.thepensionsregulator.gov.uk.
From the start of an assignment, agency workers must be given the same access as directly employed staff to collective facilities and amenities, including:
- staff canteens
- childcare facilities
- transport services.
Benefits in kind, like subsidised gym memberships, are not usually included.
In certain circumstances, a hiring organisation might be able to refuse agency workers equal access to facilities if it can objectively justify why providing access would be unreasonable. This is rare and cost alone will usually not be enough.
In many ways, an agency worker has the same work pattern and rest period rights as anybody to:
- work no more than an average of 48 hours a week. You can choose to work more by opting out of the 48-hour week. The 48 hour limit does not usually apply to workers who can decide independently on their working patterns such as Limited Company Contractors
- a 20-minute rest break if their working day is longer than six hours
- 11 consecutive hours’ rest in any 24-hour period
- one day off work each week.
After passing the 12-week qualifying period, they have a right to start getting the same working patterns and rest periods as staff directly employed by the hiring organisation, including any entitlement to longer lunch breaks or extra breaks.
An agency worker (who is not self-employed) must be informed about vacancies at the hiring organisation in the same way as staff directly employed by the hiring organisation. This can often be satisfied by ensuring that agency workers know where vacancies within the hiring organisation are advertised and how to access them.
Sometimes a hiring organisation may want to employ an agency worker as a permanent employee. An agency must not prevent an agency worker from taking a permanent job with the hiring organisation.
An agency may be able to charge a fee to the hiring organisation in certain circumstances where an agency worker is made a permanent employee. It must not charge the agency worker.
In many ways, an agency worker has the same parental rights as anybody. These rights will vary depending on their employment status.
All agency workers with worker or employee status have the following rights.
- To not be treated unfavourably because they are pregnant or taking time off due to maternity.
- Pregnant agency workers are entitled to paid time off to attend antenatal appointments after passing the 12-week qualifying period. The agency worker should give as much notice as possible and can be asked to provide evidence of an appointment.
- An agency worker whose partner is pregnant is entitled to unpaid time off to attend antenatal appointments.
- Agency workers who are not employees are not entitled to maternity leave but they can still stop working to care for their child. To do this, they will usually only need to inform their agency of the dates that they will be unavailable for future assignments.
- While off caring for their new child, agency workers may be entitled to Statutory Maternity Pay, Maternity Allowance, Statutory Paternity Pay, Statutory Adoption Pay and/or Shared Parental Pay. For more information on eligibility visit Parents and carers.
Only agency workers with employee status have the following rights:
- to maternity leave, paternity leave, adoption leave and/or shared parental leave.
There are some additional rules regarding pregnant agency workers.
- Once a hiring organisation becomes aware that an agency worker is pregnant, it must consider health and safety risks to ensure the assignment is suitable and/or remove identified risks. If risks cannot reasonably be removed, the agency must end the assignment on maternity grounds and:
- Where suitable alternative work is available, put the pregnant agency worker forward for this work.
- Where no suitable alternative work can be found, pay the agency worker for at least the expected length of the original assignment.
- If suitable alternative work is offered but the pregnant agency worker unreasonably refuses it, then no further payments will be due unless further work is undertaken.
An agency worker is entitled to join a trade union. A trade union can:
- provide support and advice on a wide range of issues
- provide a representative to accompany the agency worker to a grievance or disciplinary hearing
- collectively consult with the agency where the union is recognised.
Agency workers must not be treated unfairly by their agency because they are a member or non-member of a trade union.
An agency worker has the same protections from discrimination as anybody.
They must not be discriminated against because of a protected characteristic (such as their sex, race or religious belief). The agency, hiring organisation and/or their staff members could all be held liable.
For more information, go to Equality and discrimination.
The hiring organisation or agency worker does not have to provide any notice to end an assignment early unless it is clearly included in the contract between the agency and the agency worker, or in the assignment information.
An agency worker should tell their agency if they want the assignment to end.
The ending of an assignment with a hirer does not usually end the relationship with the agency. If an agency worker or the agency want to end their relationship, they should do so in writing. However, this can be dependent on the contract.
An agency can usually terminate their relationship with an agency worker without notice or providing a reason unless:
- the contract provides other rights
- they are an employee of the agency and have been employed for at least one month.
For more information, go to ‘Understanding an agency worker’s employment status’ on the Agency workers article.
For some rights mentioned above, an agency worker needs to qualify for these by accruing 12 weeks in the same role at the same hiring organisation.
A week runs for 7 days from the day on which the assignment began. So if the assignment began on a Wednesday, the week would finish on the following Tuesday.
An agency worker will accrue a week towards the qualifying period:
- for any week in which they do any work in the role
- if they are unable to work due to pregnancy, childbirth or maternity breaks which take place during pregnancy and up to 26 weeks after childbirth
- if they are unable to work due to paternity leave, adoption leave or shared parental leave.
The 12-week qualifying period will pause for:
- breaks from the role that last for 6 weeks or less
- sickness-related absence (that lasts for 28 weeks or less)
- annual leave
- workplace shutdowns – for example, for Christmas or industrial action
- jury service (that lasts for 28 weeks or less).
The 12-week qualifying period will start again for:
- any new role
- the same role after a break of 6 weeks or more
- the same role after 28 weeks’ sickness-related absence or jury service.