Under the Agency Workers Regulations 2010, are agency workers entitled to the same rights relating to working time and annual leave as direct recruits?

Yes. An agency worker who has completed the 12-week qualifying period is entitled to the same basic working and employment conditions that they would have received for doing the same job if directly recruited by the hirer. Regulation 6 of the Agency Workers Regulations 2010 (SI 2010/93) provides that this includes terms and conditions relating to the duration of working time and annual leave.

Agency workers benefit from the limits on working time set out in the Working Time Regulations 1998 (SI 1998/1833) from day one of the assignment. After completing the 12-week qualifying period, they will also benefit from any specific company agreements that apply to comparable direct recruits. For example, if the agency worker would have worked shifts lasting no more than ten hours had they been directly recruited, they cannot be required to work shifts lasting 12 hours after completing the 12-week qualifying period.

In Kocur v Angard Staffing Solutions Ltd and another [2019] IRLR 933 CA, the Court of Appeal held that entitlement to the same terms and conditions relating to the duration of working time does not mean the agency worker is entitled to be given the same number of hours' work as a direct recruit.

Agency workers benefit from the minimum statutory entitlement to 5.6 weeks' paid annual leave from day one. If direct recruits are entitled to more than the minimum statutory amount, so is a comparable agency worker who has completed the 12-week qualifying period. Government guidance on the Regulations suggests that, to simplify the administration of annual leave, employers may wish to "buy out" any contractual entitlement over and above the statutory entitlements, either as a one-off payment at the end of the assignment or as part of the daily or hourly rate, although it is debatable if insisting on this buy out would amount to the employer providing the same terms and conditions relating to annual leave that the agency worker would have received as a direct recruit.