Under the Agency Workers Regulations 2010, are agency workers entitled to bonuses that are payable to direct recruits?
Whether or not agency workers are entitled to bonuses depends on the nature of the bonus. After completing the 12-week qualifying period, an agency worker is entitled to the same pay to which he or she would be entitled had he or she been a direct recruit in the same job. Pay is defined by reg.6(2) of the Agency Workers Regulations 2010 (SI 2010/93) to include bonuses. However, there is an express exclusion of bonuses that do not relate to an individual's performance. For example, if a company makes a good profit in a particular area and decides to give all employees in that area a bonus, in order to promote loyalty to the company, the agency worker would not be eligible where there is no recognition of individual contribution. But where a company pays a bonus dependent on the direct recruit meeting certain targets around quality or quantity of work, the agency worker is also eligible for the bonus.
If an individual bonus is not paid to workers because, for example, they have not completed a minimum length of service, or have ceased to be employed at the point of payment, any such criteria for payment must apply equally to direct recruits and comparable agency workers. It is good practice for an employer to set out a clear policy on whether or not bonuses are paid when these circumstances arise, particularly as they are likely to arise more frequently in relation to agency workers than permanent workers.