What rights do agency workers have under the Agency Workers Regulations 2010 after the 12-week qualifying period?

The Agency Workers Regulations 2010 (SI 2010/93) confer a number of rights on agency workers. Some of these rights apply from the first day a worker is engaged at a hirer organisation. Other rights apply only after the worker has been with the same hirer in the same or a substantively similar role for 12 weeks.

Following the completion of a 12-week qualifying period, agency workers are entitled to the same basic working and employment conditions to which they would have been entitled had they been directly recruited by the hirer. This means that they are entitled to equal treatment in relation to:

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

Pay includes:

  • basic pay;
  • fees and commission;
  • overtime and shift allowances;
  • bonuses based on performance (rather than bonuses paid to encourage long-term service and/or company-wide bonus or share schemes); and
  • vouchers (for example for eye tests).

The Regulations expressly exclude some elements of an employee's financial package from the definition of pay for these purposes. For example, an employer is not obliged to extend occupational sick pay; maternity, paternity or adoption pay; or statutory or contractual redundancy pay to agency workers.

In the event that an agency worker's entitlement to equal treatment is breached, the hirer will be liable to pay an award to the extent that the employment tribunal finds that it is responsible for the breach.

After the qualifying period, pregnant agency workers are also entitled to specific rights, including paid time off for antenatal care and, potentially, paid time off during an assignment if it is unsuitable for pregnant workers. It is the agency's responsibility to seek alternative work for the worker if a health and safety risk means that the assignment is unsuitable, and to pay them for the duration of the assignment if no suitable alternative work is available.