Agency Workers Regulations 2010

The Agency Workers Regulations 2010 come into force in October 2011 and will give agency workers the same basic employment conditions after 12 weeks in a given job as those that would have applied if they had been recruited directly by the hirer. This article explains the effect of the Regulations and assesses their likely impact. It also considers which aspects of the Regulations are most controversial and likely to be subject to legal challenge.


The Agency Workers Regulations 2010 (SI 2010/93) implement the the Temporary Agency Workers Directive (2008/104/EC) and come into force on 1 October 2011. They will transform the way in which agency workers are treated in the UK, by giving them the right to the same basic working and employment conditions as if they had been directly employed by the hirer. The Regulations also give agency workers access to collective facilities operated by the hirer, such as canteens and parking, and extend the rights of agency workers in relation to pregnancy and antenatal care.

The Regulations are not based exclusively on the Directive, but also on an agreement between the CBI and the TUC (PDF format, 22.88K) (on the National Archives website) reached in May 2008. Article 5(4) of the Directive allows the UK to depart from the strict terms of the Directive in accordance with such an agreement, provided that agency workers are given an "adequate level of protection". This agreement has played a crucial part in the shaping of the Regulations, and in particular has allowed the imposition of a 12-week qualifying period before an agency worker can enjoy certain key entitlements.

Who is covered by the Agency Workers Regulations 2010?

The Regulations are designed to apply where a worker is supplied by a temporary work agency to work "temporarily for and under the supervision and direction of a hirer" (reg.3(1)(a)). A temporary work agency is one engaged in the business of "supplying individuals to work temporarily for and under the supervision and direction of hirers" (reg.4(1)(a)).

This seems straightforward enough, but a feature of the modern agency work industry is that there is a bewildering array of organisational and contractual structures that can be used in the process of sending a worker to work for a hirer. For example, one agency may act as an intermediary between the hirer and a number of different agencies. Alternatively, the worker may be engaged by an umbrella company, which then contracts with a variety of agencies to send its employees to a number of different hirers.

The Regulations seek to ensure that neither agencies nor hirers can structure their relationships in such a way as to avoid their effect. Regulation 3(3) and (5) provides that an individual will still be an agency worker even if one or more intermediaries are used in the supply, payment or even employment of the individual.

An agency does not therefore have to be covered by the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/ 3319) in order to be covered by the Agency Workers Regulations 2010. What matters is simply whether or not the "agency" in question is engaged in the business of supplying agency workers to hirers.

The definitions of agency worker and temporary work agency are not free from all possible loopholes. However, it is likely that, in view of the overall purpose of the Directive being to protect workers, the courts will be reluctant to allow technical arguments to prevent potentially vulnerable workers from enjoying the rights given by the Regulations. Regulation 3(1)(b), for example, requires an agency worker to have either a contract of employment with the agency (a rare but not unknown arrangement) or a "contract to perform work and services personally for the agency". At first sight this seems odd because the services performed by an agency worker are for the hirer rather than the agency. It must be, however, that because the agency ultimately derives its profits from the services performed by the agency worker for the hirer, those services can properly be regarded as being provided "for the agency". It is also highly unlikely that the courts would hold that a right to refuse work, or a lack of obligation to provide it, would negate the existence of such a contract. Such a finding would clearly be at odds with the purpose of the Directive and the Regulations and is likely to be given short shrift.

The Regulations are not designed to apply to workers who are genuinely in business on their own account, either as sole traders or through the operation of their own limited company. Regulation 3(2) excludes from the definition those for whom the agency or hirer is a client or customer of a profession or business operated by the individual and, in the vast majority of cases, where the individual operates through a limited company, the contract will be with the company rather than with the individual and therefore outside the scope of the Regulations. The only exception would be if a tribunal could be convinced that the setting up of the limited company was merely a sham designed to disguise the true nature of the relationship. In such cases it may be held that the contract is with the individual after all.

The qualifying period

The Directive is intended to apply to agency workers from their first day in any assignment. However, the derogation provided for in art.5(4) that allows the UK to provide for its own arrangements based on an agreement between the national level social partners states that "such arrangements may include a qualifying period for equal treatment". The TUC/CBI agreement accordingly provides that "after 12 weeks in a given job there will be an entitlement to equal treatment". It falls to the Regulations to specify just how the 12-week qualifying period should operate and to define what is meant by a "given job".

The Regulations deal with this issue in the rather complicated provisions in regs.7, 8 and 9. It should be remembered, however, that the Regulations had to take account of the TUC/CBI agreement, which asked the Government to consult on appropriate "anti-avoidance measures". The previous Labour Government took this issue very seriously, and the provisions on the qualifying period are specifically designed to prevent agencies and hirers from manipulating the 12-week qualifying period to prevent agency workers from qualifying for protection while continuing to work for the hirer.

Regulation 7 provides that the right to equality does not apply unless the agency worker has completed the qualifying period. To do so he or she must work "in the same role" with the same hirer for 12 continuous calendar weeks during "one or more assignments". For agency workers who are already in post, the 12-week qualifying period does not begin to run until the Regulations come into force on 1 October 2011 (reg.7(12)).

The first point to note is that the focus is on the role not the assignment. It is therefore perfectly possible for one agency worker to build up weeks towards the qualifying period through a series of different assignments with different agencies, provided that he or she is working for the same hirer and in "the same role".

Nor does it matter whether the worker is assigned for the whole of a week or part of a week. Any week during the whole or part of which the agency worker works for the hirer counts as a calendar week for these purposes (reg.7(4)).

If the agency worker begins work in a "new role", the continuity clock will be reset at zero, even if the worker continues to be assigned to the same hirer by the same agency. However, for a role to be "new", two conditions must be fulfilled. First, the work or duties that make up the whole or main part of the new role must be "substantively different". Second, the agency must have informed the agency worker - in writing - of the type of work the agency worker will be required to do in the new role (reg.7(3)).

The use of the word "substantively" is significant. A more natural word to use might have been "substantially" and it would seem that the intention here is to count a role as new when the differences between it and the old one are real and significant, even if there is considerable similarity between the two. After all, one can expect that an agency worker in two roles will be using the same skills and doing essentially the same sort of job. That will not prevent it from being a new role, however, provided that there is a substantive difference in the duties.

One thing that is not clear is whether or not a change in location can be counted as a new role. If an agency worker is engaged as a receptionist in a local government housing office for six weeks and is then moved to be a receptionist in a different housing office in a different town, would continuity continue to run? Arguably it would, provided that the work or duties are not substantively different. The requirement for the agency to inform the agency worker in writing of the kind of work involved in the new role emphasises that the focus is on the nature of the work rather than where or in which part of the organisation the work is done.

Not every break in an assignment will reset the continuity clock to zero. Some breaks will simply stop the clock, which will then continue to run when the worker returns to the same role (reg.7(5)). Other breaks will have no effect at all, and the worker will be deemed to be working in the role for the original intended duration of the assignment or its likely duration, whichever is longer (reg.7(6)).

This latter group includes breaks related to pregnancy, maternity or childbirth that take place during pregnancy and up to 26 weeks after childbirth. This includes periods where the agency worker is prevented from working because of health and safety restrictions applying to pregnant workers. It also includes breaks due to the worker taking maternity leave, adoption leave or paternity leave. At first sight this seems odd because agency workers do not, in general, qualify for these leave rights. However, some agency workers are employees of the agency (and this fact does not affect the application of the Regulations to them). It is this group of employees who are likely to benefit most from these provisions, although a non-employee would benefit from this exception if absent during pregnancy for, for example, a health and safety reason.

Of more practical importance are those breaks that stop the clock, but allow it to resume when the agency worker returns. A break will operate in this way if it is:

  • a break for any reason where the break is no more than six calendar weeks;
  • a break of up to 28 weeks because the agency worker is incapable of work because of sickness or injury and has, if requested by the agency, provided reasonable medical evidence of this;
  • for the purpose of taking contractual or statutory leave or time off to which the agency worker is entitled, including annual leave;
  • a break to allow the agency worker to perform jury service;
  • a break caused by a regular and planned shutdown of the workplace by the hirer (for example at Christmas or where the hirer's work is seasonal); or
  • a break caused by a strike, lock-out or other industrial action at the hirer's establishment.

There are, therefore, a wide variety of circumstances in which an agency worker can accrue the necessary 12 weeks of qualifying assignment despite the fact that his or her assignment is essentially intermittent.

For example, an agency worker who is engaged for two weeks, followed by a three-week break; then for another week followed by a four-week break; then for another week before being off sick for 10 weeks; and then returns to the assignment for six weeks, followed by a two-week holiday, will need to be rehired for only a further two weeks to have met the qualifying period of 12 weeks. This is despite the fact that, over the 29-week period, the agency worker has actually been engaged for only 10 weeks.

Organisations that intend to meet the challenge of the Regulations by ensuring that agency workers are not engaged in a role for more than 12 weeks will therefore have to be extremely careful. If there are a large number of agency workers being hired on an intermittent basis throughout the year, it will be quite easy for some to slip through the net and accrue the 12-week period without the hirer realising. Careful communication with the agency will be essential.

Structuring assignments to avoid the Regulations

Another reason for hirers and agencies to be extremely careful is that attempts to structure assignments so as to avoid the effect of the Regulations are expressly outlawed.

A hirer might move an agency worker to different roles with the specific intention of resetting the continuity clock to zero. This might, for example, involve a receptionist being moved for a few weeks to work in general administration, before being moved back to the original receptionist role.

However, special rules apply under reg.9 if an agency worker has completed two or more assignments with a hirer (or an associated hirer), or has worked in more than two roles during an assignment and on at least two occasions has worked in a role that was not the same role as the previous role.

If, in these circumstances, the "most likely explanation for the structure of the assignments" is that either the hirer or the agency intended to prevent the agency worker from being entitled to equality in basic employment terms and conditions; and if, but for the structure of the assignments, the agency worker would have gained or kept that right, the agency worker will be deemed to be entitled to the right.

This is an important provision and there is nothing else like it in UK employment law. It means that neither the hirer nor the agency can "play the system" and use breaks between assignments or moving an agency worker from role to role to disguise the fact that, in reality, he or she has been engaged to perform a role on a long-term basis. The rule reflects the TUC/CBI agreement, which provides for appropriate anti-avoidance measures, in particular dealing with repeat contracts.

It does, however, remain open to an employer simply to end an assignment before 12 weeks have accrued, even if the motivation behind this is to prevent the agency worker completing the qualifying period. An agency worker can also be moved to a new role once for this purpose. The anti-avoidance measure kicks in only when the agency worker is reassigned or repeatedly moved to a new role with the intention of preventing him or her from achieving the qualifying period.

One difficult point about the rule is that it depends on the subjective intention behind the structuring of the assignments. Judging the intention behind what may be a complicated history of assignments will be far from a straightforward exercise. However, reg.9(5) provides a list of matters that should be taken into account in deciding whether or not avoiding the Regulations is the most likely explanation for the structure of the assignments at issue. These are:

  • the length of the assignments;
  • the number of assignments with the hirer and any associated hirers;
  • the number of times that the agency worker has worked in a new and different role with the hirer or associated hirers;
  • the number of times that the agency worker has returned to work in the same role with the hirer or associated hirers; and
  • the period of any break between the different assignments.

The most important point, however, is that hirers and agencies will have to be careful not to let a pattern of assignments emerge that indicates that an attempt is being made to avoid the effect of the Regulations.

The consequences of getting this wrong are more severe than simply inadvertently allowing an agency worker to qualify for the right to equal working and employment conditions. If an agency worker is successful at tribunal and is awarded compensation as a result, where the tribunal finds that either the hirer or the agency sought to avoid liability through the structure of assignments, the tribunal can make an additional award of up to £5,000 compensation to the agency worker (reg.18(14)).

Basic working and employment conditions

An agency worker who has completed the 12-week qualifying period (or who is deemed to have completed it) will be entitled to the same relevant basic working and employment conditions to which the worker would have been entitled had he or she been directly employed (reg.5(1)).

The definition of basic working and employment conditions is not straightforward and is the subject of some controversy. The Directive defines them as those "laid down by legislation, regulations, administrative provisions, collective agreements and/or other binding general provisions in force in the user undertaking and relating to: the duration of working time, overtime, breaks, rest periods; night work, holidays and public holidays; and pay" (art.3(1)(f)).

It is difficult to match this definition to the majority of workplaces in the UK, which tend not to have "binding general provisions" in force. It could even be argued that this definition would actually exclude employers without formal pay structures or union recognition.

However, the Regulations take a wider view, and refer to the "relevant terms and conditions that are ordinarily included in the contracts of employees of the hirer" (reg.5(2)). From this it would seem that, if an employer ordinarily gives employees six weeks' holiday every year, this will be a relevant term to which an agency worker will be entitled after completing the qualifying period.

Pay is, of course, a term that is ordinarily included in contracts of employment. What is, unfortunately, not clear from the Regulations is whether or not there needs to be a specific pay scale that the employer ordinarily adopts for the right to apply. In reality, this may not matter too much because, in the absence of such a scale, or at least some standard practice, it is unlikely that the agency worker will be able to show that he or she would have been paid more if directly employed.

Relevant terms and conditions

Relevant terms and conditions are defined in reg.6(1) as being:

  • pay;
  • the duration of working time;
  • night work;
  • rest periods;
  • rest breaks; and
  • annual leave.

It is in respect of only these terms, therefore, that the right to equality can apply.

Defining pay

Pay is by far the most complicated relevant term. While the Directive does not contain any explanation of what "pay" means, the Regulations go into detail on the subject. In part this is a result of the TUC/CBI agreement, which states that "occupational social security schemes" will not be covered by the right to equality in terms of pay. This rather opaque phrase is used in the Directive, which states that it includes "pensions, sick pay or financial participation schemes". These areas are therefore excluded from the definition of pay in reg.6.

The definition of pay starts off very wide but is narrowed by a series of exceptions. Under reg.6(2), "pay" means any sum payable to a worker in connection with the worker's employment. It includes any "fee, bonus, commission, holiday pay" or other payment referable to the employment. However, there then follows a list of important exceptions. Pay does not include:

  • any payment by way of occupational sick pay;
  • any payment by way of a pension, allowance or gratuity in connection with the worker's retirement or as compensation for loss of office;
  • any payment in respect of maternity, paternity or adoption leave;
  • any payment in respect of the worker's redundancy;
  • any payment in relation to profit share or the distribution of shares or options;
  • any bonus, incentive payment or reward that is "not directly attributable to the amount or quality of the work done" and that is given "for a reason other than the amount or quality of the work done";
  • any payment for time off for carrying out trade union duties;
  • guarantee payments;
  • any payment of a loan or an advance on wages;
  • any payment of expenses incurred by the worker; or
  • any payment to the worker "otherwise than in the person's capacity as a worker".

One would expect many of these payments - such as those relating to redundancy and guarantee payments - to be paid only to people with a full employment relationship with their employer, so their exclusion from the sums that agency workers must be paid is not likely to be controversial.

It is the exception relating to the amount or quality of the work done that is likely to be the subject of challenge. There is no equivalent restriction on the meaning of pay in the Directive and nothing in the TUC/CBI agreement authorises this exclusion. The rationale behind the exception is that pay should be for work actually done and that payments designed to encourage loyalty or reward long service are not appropriate payments to have to make to agency workers.

That may be so, but the fact is that this limitation is not found in the Directive, which simply refers to "pay", and it is difficult to argue that, for example, a Christmas bonus that is paid out to all employees is not part of an employee's pay. It is also not straightforward to judge when a payment is being made for a reason other than the amount or quality of work done. Is a Christmas bonus paid to encourage loyalty or is it simply part of the overall package of terms and conditions that the employer pays in return for the work done by the employee?

This is possibly the provision that will be at the root of most case law as the boundaries of the Regulations, as well as their compliance with the Directive, are tested.

The comparison

An agency worker who completes the qualifying period is entitled to the same basic working and employment conditions to which he or she would be entitled if directly employed by the hirer (reg.5(1)).

There is no general "less favourable treatment" provision mirroring those in relation to part-time workers and employees on fixed-term contracts. Nor do the Regulations provide anti-discrimination rights such as those found in the Equality Act 2010. For the key rights set out in reg.5, what matters is not how other workers or employees are treated, but the terms that would have been enjoyed by that agency worker had he or she been directly employed. The employer has no defence of justification. If the comparison is made out, the agency worker is entitled to the appropriate terms and conditions irrespective of any business reason the hirer or the agency may put forward for not engaging the agency worker on those terms.

Of course, as a question of evidence, the terms and conditions enjoyed by employees are likely to be crucial, but there is no formal need for the agency worker to identify a comparator in order to bring a claim. What matters are the terms on which the agency worker would have been employed if he or she had been directly employed.

This means that the terms to which the agency worker is entitled are not fixed at the start of the assignment, but may improve over time if that is what would have happened had he or she been directly employed. If holiday entitlement increases for employees after two years' service, for example, an agency worker who is assigned for more than two years should be entitled to the increase. A similar rule should apply in terms of annual pay reviews, or progression up a pay scale or grade.

Regulation 5 does, however, contain an important limitation to this principle - albeit one that may be subject to legal challenge for failing to comply with the terms of the Directive. Under reg.5(3), a hirer will be deemed to be in compliance with the need to provide the same basic working and employment conditions, provided that the agency worker is on the same relevant terms and conditions as a "comparable employee".

A "comparable employee" is an employee who works directly for the hirer at the same establishment as the agency worker and who is engaged "in the same or broadly similar work". Where there is no such employee in the same establishment as the agency worker, the hirer can point to a comparable employee at some other establishment where the hirer has employees.

In deciding whether or not the agency worker and the employee are engaged in the same or broadly similar work, regard may be had where relevant to whether or not they have a similar level of qualification and skills (reg.5(4)(a)(ii)).

This is a controversial provision and its terms are not reflected anywhere in the Directive. What it appears to mean is that an agency worker is entitled only to those working conditions that reflect the least favourable terms granted to any employee in that particular role, irrespective of any evidence there may be that, had the agency worker been directly employed, he or she would have been employed on better terms.

For example, if an agency worker is engaged in a role where employees earn between £15,000 and £22,000 per year, the agency worker will be entitled to be paid only at the level of the lowest-paid employee in that group. This will be so even if the agency worker has been on the assignment for so long that, had he or she been directly employed, he or she would have progressed through the pay structure and would be being paid at a higher rate. Even if the comparable employee receives a pay increment, the agency worker will still be held back if he or she is replaced by another comparable employee on the lower rate.

This is surely a breach of the Directive's requirement for the agency worker to enjoy the same terms and conditions as if he or she had been directly employed (art.5(1)).

However, the courts could take a very restricted view of the provision by regarding an agency worker with more experience than a "comparable" employee as having different qualifications or skills. It is also worth bearing in mind that the comparison with the employee could be made only for as long as that employee remained in post. If the comparable employee left, the comparison would have to be made with the employee on the next lowest rate.

Pay between assignments

Article 5(2) of the Directive provides one significant exception to the right of agency workers to equality in terms of their pay - namely where the agency worker is directly employed by the agency under a permanent contract of employment and is entitled to be paid between assignments.

This exception is given effect by regs.10 and 11. The exception applies only to pay and not to other terms and conditions or access to facilities and amenities, access to information or maternity rights.

The key aim of reg.10 is that agency workers do not enter into a contract to which the right to equivalent pay will not apply without being clearly informed of that fact and the way in which the contract with the agency will work.

For the exception to apply, the contract with the agency must be entered into before the first assignment with a hirer. It must include written terms and conditions setting out:

  • the minimum scale or rate of remuneration or the method by which remuneration will be calculated;
  • the location or locations where the agency worker may be expected to work;
  • the expected hours of work during an assignment;
  • the maximum number of hours that the agency worker may be required to work each week during an assignment and the minimum number of hours that will be offered; and
  • the nature of the work that the agency worker may expect to be offered.

The contract must also state that the effect of entering into it is that the agency worker will not have entitlement to the rights related to pay set out in reg.5.

The crucial requirement of reg.10 that fundamentally distinguishes an arrangement under it from the normal terms of agency workers is that, during any break between assignments, the agency must:

  • take reasonable steps to find suitable work for the agency worker, and propose the agency worker for any such work as may become available; and
  • pay the agency worker "the minimum amount" for the duration of that period.

The "minimum amount" is defined in reg.11 as not less than 50% of the amount that the agency worker earned on average over the 12 weeks immediately preceding the end of the previous assignment (or averaged over the whole of the assignment if it was shorter than 12 weeks). If the figure for the hours worked over this period would amount to less than the national minimum wage, the shortfall must be made up in calculating the "minimum amount".

Regulation 10 contains a provision aimed at preventing an agency from hiring a worker under this exception, but then dismissing him or her as soon as the first assignment ends. Under reg.10(1)(d), the agency must not terminate the contract until it has made an appropriate "between assignments" payment to the agency worker for at least four calendar weeks.

Access to facilities and amenities

As well as the equality right set out in reg.5, there is a freestanding right for agency workers to be treated "no less favourably" than a comparable worker in relation to the collective facilities and amenities provided by the hirer (reg.12).

Unlike the reg.5 rights relating to terms and conditions, this equal access right applies only if the less favourable treatment is "not justified on objective grounds" (reg.2(2)) - although there is nothing in the Regulations to give any further guidance on what might be regarded as objective justification.

A comparable worker is defined in the same way as a comparable employee in reg.5, so what matters is that the agency worker and the comparator are engaged in the same or broadly similar work at the same establishment. The Regulations also allow a comparison with workers at different establishments if there are no comparable workers at the same establishment - although the fact that the comparators are at different establishments might well amount to justification for the provision of different facilities and amenities.

There is no limitation to what "collective facilities and amenities" means, but reg.12(3) provides that it includes in particular:

  • canteen or other similar facilities;
  • childcare facilities; and
  • transport services.

It would therefore be a breach of reg.12 for an employer to exclude agency workers from the staff canteen or refuse to let them use a free coach service that it operated between the local train station and the workplace.

Regulation 12 does not simply require that agency workers be given access to facilities, but requires that they be treated no less favourably in relation to them. Therefore, if employees are provided with canteen food on a subsidised basis, it would seem that agency workers must also be entitled to the same level of subsidy. The cost of providing this access is unlikely to amount, on its own, to objective justification for withholding it. Similar issues may well arise in respect of the cost of workplace crèche facilities.

The reg.12 right in relation to facilities and amenities applies to all agency workers from day one of their assignment. There is no qualifying period for this right.

Access to employment

Regulation 13 specifically provides that, during an assignment, agency workers are entitled to be informed by the hirer about any relevant vacant posts that it has and to be given the same opportunity as a comparable worker to "find permanent employment" with the hirer.

This is not a right for agency workers to be informed individually of vacancies. Regulation 13(4) makes it clear that agency workers can be informed of vacancies by a "general announcement in a suitable place". This could be a noticeboard or the hirer's intranet.

Pregnancy rights

The Directive specifically provides that rules on the protection of pregnant women and nursing mothers must be extended to agency workers (art.5(1)(a)). As a result, the Regulations make a number of amendments to existing legislation dealing with the various statutory rights that apply in cases of pregnancy. They do not, however, extend to agency workers the right to take maternity leave, adoption leave, paternity leave or parental leave, all of which continue to depend on the individual's status as an employee.

In relation to antenatal care, at para.11 of sch.2, the Regulations insert two new sections (ss.57ZA and 57ZB) into the Employment Rights Act 1996 giving pregnant agency workers a right to paid time off for the purpose of receiving antenatal care. The right is expressed in equivalent terms as that for employees under ss.55 and 56 of the Employment Rights Act 1996.

The right for agency workers to take time off for antenatal case is, however, subject to the 12-week qualifying period (s.57ZD of the Employment Rights Act 1996). As with the rights relating to basic working and employment conditions, the right can be lost if there is the requisite break between assignments or the agency worker is moved to a new role.

A more complicated attempt to protect pregnant agency workers relates to the right to suspension on maternity grounds found in part VII of the Employment Rights Act 1996. This gives a pregnant employee the right to be offered alternative work or suspended on full pay where a provision of health and safety law prevents the employee from continuing to perform the work for which she is employed.

Transferring this concept to agency workers is by no means straightforward. In particular, the concept of suspension does not transfer easily to agency workers. Instead new ss.68A to 68D of the Employment Rights Act 1996 deal with the ending of the supply of an agency worker on maternity grounds. This does not, of course, refer simply to ending the supply of an agency worker because she is pregnant (which would be unlawful discrimination), but to ending the supply on health and safety grounds.

Under s.68B, where the agency worker's supply to the hirer is ended on maternity grounds, the agency must offer the agency worker suitable alternative work, if any is available. However, this obligation to provide alternative work does not apply if the worker has confirmed in writing that she no longer requires the services of the agency. In any event, the obligation does not extend beyond the original intended duration (or likely duration if that is longer) of the assignment that ended because of the maternity grounds (s.68B(3)(b)).

Where alternative work is not available, s.68C gives the agency worker a right to continue to be paid remuneration by the employment agency for the remaining period of the assignment that has been brought to an end on maternity grounds. Pay must be at the rate of a full week's pay for each week of work missed by the agency worker and will vary according to the assignment she was on.

The rights to alternative work or continued remuneration apply only where the agency worker has completed the 12-week qualifying period (s.68D).

The right to receive information

Without a specific right to information, an agency worker might be left unaware of the terms and conditions applying in relation to the hirer. Regulation 16 seeks to give agency workers such a right, although the provision is complicated by the fact that, although the agency worker has a contract only with the agency, it is likely to be the hirer who is in possession of the information likely to be of most use to the agency worker.

Under reg.16, a request for information must first be made to the agency. The request must be in writing and is a request for a "written statement" containing information about whatever treatment the agency worker feels might be in breach of reg.5. The request can be made only if the agency worker has completed the 12-week qualifying period.

Where an agency receives a request from an agency worker it must, within 28 days, provide the agency worker with a written statement setting out:

  • relevant information relating to the terms and conditions of the hirer's workforce;
  • the factors considered by the agency in determining what basic working and employment conditions applied to the agency worker at the time when the breach of reg.5 is alleged to have taken place; and
  • if the agency is relying on the treatment of a "comparable employee" (see above), the terms and conditions of that employee and the basis on which the agency considers that he or she is comparable.

If the agency worker does not receive a written statement from the agency within 30 days of making the request, he or she can submit the request to the hirer, which must respond within 28 days.

In relation to access to facilities, amenities and employment dealt with by regs.12 and 13, the agency worker can submit a request for information directly to the hirer. The hirer then has 28 days to provide a statement setting out information about the rights of comparable workers in relation to the issue raised by the worker and giving the reasons for any less favourable treatment of the agency worker.

Unfair dismissal and detriment rights

The Regulations do not give agency workers the right not to be unfairly dismissed. Such a right exists only if the agency worker is also an employee. Nevertheless, reg.17 provides that an agency worker who is an employee shall be regarded as unfairly dismissed if the principal reason for dismissal is that the agency worker:

  • brought proceedings under the Regulations;
  • gave evidence or information in connection with any proceedings brought by an agency worker;
  • made a request for a written statement under reg.16 (see above);
  • alleged any breach of, or did anything under, the Regulations; or
  • refused to forego any right under the Regulations.

There is no qualifying period required for dismissals that fall within this category (para.16 of sch.2). The protection does not apply if the allegation that is the basis of the dismissal is false and not made in good faith.

An agency worker also has the right not to be subjected to any detriment for any of the above reasons (reg.17(2)). All agency workers benefit from this right, as there is no need for them to be employees.

The unlawful detriment and dismissal provisions do not prevent a hirer or agency from dispensing with the services of an agency worker to prevent him or her from qualifying for any rights under the Regulations. An agency worker may have his or her assignment terminated before completing the qualifying period and will have no remedy.

Liability of the hirer and agency

The triangular nature of the relationship between the agency, the agency worker and the hirer inevitably means that assigning the appropriate liability when the Regulations are breached is going to be a complicated exercise.

The overall policy of the Regulations is that liability should rest with whichever party is at fault in denying the appropriate rights to the agency worker. Since access to facilities and amenities and access to employment opportunities are matters exclusively within the control of the hirer, it is the hirer who is made liable for any breach of these rights (reg.14(6)).

The reg.5 rights are more complicated, however, as for the agency worker to receive the correct amount of pay, for example, the hirer needs to communicate with the agency and the agency needs to pay the worker accordingly.

Therefore, under reg.14, the agency and the hirer are each made liable to the extent that they are responsible for the breach.

Further, the agency will not be liable where it can establish that it took reasonable steps to obtain from the hirer relevant information about the basic terms and conditions in force at the hirer and, in accordance with that information, acted reasonably in determining the terms and conditions for the agency worker, and ensured that it dealt with the agency worker accordingly. To the extent that the agency is not liable as a result of this provision, the hirer is made liable (reg.14(3)).

There may be more than one agency involved in the proceedings, particularly if the agency worker is being supplied through a number of intermediaries. Where this is the case, it will be for the tribunal to determine where the blame lies and divide liability accordingly (reg.14(5)).

The result is that, in any one case, the tribunal may be faced with a number of different respondents. It will be for the tribunal to determine first whether or not the complaint is well founded, and, if it is, which of the respondents is responsible for whatever infringement has been found. The tribunal is free to apportion liability between the respondents in accordance with the extent to which it holds that each of them is responsible for the breach.


Agency workers can complain about breaches of the Regulations by bringing claims in the employment tribunal. The standard three-month time limit applies, running from the date of the act complained of. Where the complaint relates to a series of similar infringements, the time limit starts running from the most recent (reg.18(4)).

This means that, if the agency fails to pay the agency worker at the correct rate over a period of time, the agency worker will be able to sue in respect of the whole period over which he or she was underpaid, even if this stretches back years. As long as the claim is brought within three months of the last underpayment, the claim will be in time.

Where the tribunal upholds a complaint it will:

  • make a declaration as to the rights of the agency worker in relation to the subject of the complaint; and/or
  • order the payment of compensation; and/or
  • make a recommendation that the respondent take action designed to prevent or reduce the adverse impact on the agency worker of any matter to which the complaint relates,

depending on the steps it considers to be just and equitable.

The most important remedy is compensation (although failure to comply with a recommendation can result in compensation being increased (reg.18(18))). The compensation must be such amount as the tribunal considers just and equitable in all the circumstances having regard to the infringement to which the complaint relates and the amount of any loss incurred by the agency worker as a result of the infringement. There is no limit to the amount of compensation that can be awarded, but for an infringement of either reg.5 (terms and conditions) or reg.10 (pay between assignments), the compensation should be at least two weeks' pay unless the tribunal does not consider this just and equitable (reg.18(12) and (13)).

The compensation must not include any amount for injury to feelings (reg.18(15)).

Where there is more than one respondent, the tribunal has the power to apportion the compensation payable between the various respondents according to what it considers to be just and equitable, having regard to the extent to which each respondent is responsible for the breach (reg.18(9)). Therefore, where a tribunal considered that the reason for the underpayment of an agency worker was mainly inaccurate information being provided by the hirer, but that the agency could have done more to challenge that information, it would be open to the tribunal to order the hirer to pay, for example, 80% of the compensation and the agency 20%.