In the UK, agency workers' rights are protected under the agency workers Regulations 2010 (AWR). These regulations aim to prevent the exploitation of agency workers. Some employers may be inclined to afford agency workers less rights than full-time employees and instead treat them as a second tier worker. The AWR introduced a variety of protections for agency workers to combat this tendency, which apply either from the start of the agency worker's engagement or after 12 weeks.
The AWR are relevant to employers who engage agency workers through an agency but take on the “supervision and direction” of the agency workers themselves. The AWR are not triggered if the individual is genuinely self-employed (typically providing his/her services through a company of which he/she is a director and who is entitled to provide a substitute) or genuinely autonomous and, therefore, not working under the employer's supervision and direction.
Day 1 rights
From the first day of being engaged by an employer, agency workers have the right to access all collective facilities and amenities in the same way as people carrying out broadly similar work to the agency worker under the direction of the same employer at the same location (or, if there are no such people, people working at another location owned by the employer) (Comparable Workers). These facilities include canteens, childcare facilities, car parking and transport services.
Less favourable treatment of agency workers in this respect can be objectively justified in limited circumstances, although cost alone is not usually a sufficient reason. agency workers also have the Day 1 right to be informed about job vacancies with the employer during their engagement in order to give them the same opportunity as Comparable Workers in finding permanent employment.
Employers are solely responsible for any breach of these rights and thus have full liability.
Rights after 12 weeks
After 12 weeks of engagement, agency workers have the right to the same basic working and employment conditions as those directly recruited by the employer. This includes key elements of pay. The right to the same working conditions also applies to duration of working time, night working, rest periods, rest breaks, annual leave and paid time-off for antenatal appointments. The agency worker again needs to be able to demonstrate that there is a Comparable Worker who enjoys the working conditions that they claim they should be given. Agencies can prevent these rights applying by entering into special types of contractual arrangements with their agency workers but these are rarely used in practice.
Liability for any breach of these rights after 12 weeks is apportioned between the employer and the agency to the extent that either is at fault. However, the agency will have a defence if it acted on information received from the employer concerning the pay or the working conditions of comparable employees, even if that information was not correct. It is therefore important that employers provide agencies with accurate and current data.
Employers and the agency must not structure engagements to prevent agency workers acquiring 12 weeks' service and thus deny them their further rights. This would be in breach of the anti-avoidance provisions. The employer and/or agency can be liable for such breaches, depending who is responsible for the structuring of the engagement.
Agency workers' remedies
For breaches of any entitlements arising from day 1, the agency worker should approach the employer directly with a written request for information before making a claim. The employer has 28 days from receipt of the request to respond in writing. The employer should then provide a written statement with the relevant information relating to the rights of a Comparable Worker or employee and its reasons for the treatment of the agency worker.
For breaches of agency workers' rights acquired after 12 weeks, the Agency Worker can request a written statement from the agency about any aspect of the treatment they are questioning before making a claim. The agency has 28 days from receipt of the request to respond in writing. There is no statutory obligation for the employer to provide the agency with relevant information about the terms and conditions of Comparable Workers. However, the employer will be held responsible for any breach to the extent that it is responsible for the infringement. Therefore, employers should provide such information on an ongoing basis. For example, the employer should provide the agency with copies of standard terms and conditions of employment, pay scales and annual leave entitlements of Comparable Workers.
The future of AWR
Whilst the future of employment law in the UK remains a little uncertain, it seems the general public appears to be in favour of keeping the protections afforded to agency workers as they are. Initially the AWR were very unpopular with businesses, who considered the regulations to be too complex and discouraged them from engaging agency workers. Indeed, even the 2011 repoert Beecroft of employment law, commissioned after the EU directive dictating such rights was issued, recommended a non-statutory code of practice and asked the government to explore the consequences of not implementing the agency workers Directive. However, research published at the end of February 2018 by the Institute of Public Policy Research highlighted the public's desire to maintain these regulations – just under half of the people questioned said they felt that the AWR should remain as they are, with only 12% expressing a desire for them to be loosened or removed altogether. In light of the above public perception and the number of agency workers in the UK employment sector, employers should ensure they are fully aware of their obligations.