Do the Agency Workers Regulations 2010 give agency workers the right to claim unfair dismissal?
The Agency Workers Regulations 2010 (SI 2010/93) do not provide a new right for agency workers to claim unfair dismissal. An agency worker can claim unfair dismissal only if he or she is an employee and meets the other qualifying requirements. An agency worker will be an employee if he or she works under a contract of employment with the temporary work agency. Alternatively, the worker could, in exceptional situations, be an employee of the hirer. If he or she does not have employee status with either the agency or the hirer, he or she cannot claim unfair dismissal.
The Regulations provide that the dismissal of an agency worker who is an employee will be automatically unfair if the reason, or principal reason, for dismissal was one of the grounds listed in reg.17(3) of the Regulations. The listed grounds include where the agency worker brings a claim under the Regulations, or alleges that an agency or hirer has breached the Regulations (including where the hirer or agency suspects that the agency worker has done or intends to do either of these things). The agency worker does not need to meet the qualifying condition of two years' service to bring a claim.
For example, if an agency worker who has a contract of employment with the agency alleges that he or she does not benefit from the same basic working and employment conditions that he or she would have received if directly recruited to the job, despite having worked for the required period, and, as a result, the agency ceases to employ the agency worker, the worker could bring a claim of unfair dismissal against his or her employer (the temporary work agency) and the dismissal would be automatically unfair.