Equal treatment for agency workers

In November 2008, the European Council formally adopted the Temporary Agency Work Directive (2008/104/EC), which affords agency workers equal treatment to directly employed staff. The Directive must be implemented by member states no later than 5 December 2011. The Agency Workers Regulations 2010 (SI 2010/93) (on the Office of Public Sector Information website), which implement the Directive, will come into force on 1 October 2011. 

The Regulations apply to agency workers who are supplied by a "temporary work agency" to undertake temporary work under the direction of a hirer. The definition of "agency worker" will be based on that used for workers in the Working Time Regulations 1998 (SI 1998/1833), adjusted to reflect the triangular relationship between an agency worker, the agency and the hirer. While the genuinely self-employed will be excluded, the Regulations will cover agency workers contracted to an "umbrella company". 

The Regulations afford agency workers equal treatment in basic employment conditions, including pay, working time and holiday, after 12 calendar weeks in a given job. Employers must give agency workers the same basic employment conditions that would apply if they had been recruited directly by the hirer into the same job. The Regulations permit agency workers to bring a claim to an employment tribunal if their rights under the Regulations are infringed or they are subjected to a detriment for asserting their rights under the Regulations. 

As well as dealing with the position of agency workers in comparison to directly employed staff, the Regulations make some important amendments in relation to agency workers and pregnancy. Schedule 2 of the Regulations inserts provisions into the Employment Rights Act 1996 giving agency workers the right to time off for antenatal care, as well as a right analogous to suspension on maternity grounds where health and safety prevents the assignment from continuing. Where this occurs, the agency has to provide an alternative assignment or pay the worker for the likely duration of the original assignment. 

On 1 April 2011 the Government published draft guidance for consultation on the Agency Workers Regulations 2010. The consultation closed on 15 April 2011 and the finalised guidance was published on 6 May 2011 (Agency Workers Regulations guidance (PDF format, 3.35K) (on the BIS website)). 

XpertHR guidance

  • The XpertHR FAQs section provides guidance on the Agency Workers Regulations 2010. 
  • Kerry Viner and Deepa Parekh of Osborne Clarke examine the type of organisations that will be affected by the Agency Workers Regulations and the new rights to which agency workers will be entitled in an overview of the Regulations; look at the qualifying period in relation to agency workers' entitlement to equal treatment and how that qualifying period will work in practice; and answer some frequently asked questions. 
  • Why we should leave the Agency Workers Regulations alone The Government is showing signs that it may accede to calls to revoke and replace the Agency Workers Regulations 2010, but consultant editor Darren Newman thinks that we should learn to live with them in their current form. 
  • Agency Workers Directive: rights on for temps Mark Hammerton of Eversheds analyses what the agency workers legislation will mean for employers. 
  • Employment Law Bulletin consultant editor, Darren Newman, looks at the Draft Agency Workers Regulations 2010, and considers what the right to equality for agency workers means and the terms and conditions to which it applies. 
  • EU: Directive gives temporary agency workers new rights European Employment Review Editor, Mark Carley, examines the provisions of the Temporary Agency Work Directive, and looks briefly at the history of efforts to protect temporary agency workers across the European Union. 
  • Temporary Agency Work Directive adopted XpertHR looks, in brief, at the European Parliament's approval of the Directive, and the events that preceded it. 
  • Agency workers do not have the right to claim unfair dismissal unless they are found to be employees of the agency or the end user - the Temporary Agency Work Directive does not change this. See Consistent Group Ltd v Kalwak and others [2008] EWCA Civ 430 for the difficulties in trying to claim employee status. 

External documents