Agency workers rights

Business East Midlands Employment Law feature - Agency Workers

Kim Mack, employment solicitor at Fraser Brown, answers the frequently asked questions regarding agency workers.

Q. How can the ways people carry out work be defined?

A. There are three main categories of working individuals - employees, workers and the self employed. The distinction between the three is not always clear cut and may mean different things in different pieces of legislation. Very simplistically, an employee works for (usually) one person, under a contract of employment (a contract of service). The employer “buys” the employee. A worker or the self employed often work for more than one person, who does not “buy” them but rather “buys” the job they are taken on to do.

Q. When is someone classed as an agency worker, rather than an employee?

A. Agency workers are simply individuals who work through an employment agency. They may, depending on the contractual and other arrangements that they have with the agency, be an employee of the agency, a worker or self employed. Most people who work through agencies are workers rather than employees.

Q. Are there ever any occasions where someone may be “employed” via an agency but be classed as an employee of the organisation using their services?

A. This is a complex area. If someone works through an agency, but is placed only with one organisation for a number of years, then it has been held that it may be possible to construe that they are an employee of that organisation - that is, a contract of employment may be implied. Whether they are an employee will depend on the facts of each individual case. One recent case held that although a person had worked, through an agency, with a local authority, and only for that local authority, for over 12 months, they were not an employee for the purposes of bringing a claim for unfair dismissal when the local authority told them they did not want them back at work after a period of sickness (they had been replaced in the interim by another person from the same agency).

Q. If an “employer” is using agency staff, do they have to go through the same redundancy procedure as with their contracted staff?

A. Generally, agency staff are not employees of the organisation they are sent to work for (although this is not always the case and if there is any doubt, advice should be sought) and so are not included in the redundancy procedure. Remember, that in order to bring a claim in relation to redundancy rights, a person must have two years service as an employee.

Q. If you are an agency worker, do you have any rights in relation to redundancy?

A. You would have no rights in respect of redundancy against the end user of your services, unless a contract of employment between you and the organisation exists or can be implied. You may, have rights against the agency itself but this will depend on circumstances including (but not limited to) the contractual arrangements between you. Rights in relation to redundancy only apply to employees.

Q. If someone has worked, via an agency, for the same “employer” for a long time, does this give them additional rights over any of their agency colleagues that have worked there for less time?

A. No. The end user of their services is not their “employer” in the legal sense of the word, (unless they are working for the organisation on a contract of employment or one can be implied), and so they accrue no greater rights than other agency workers working for the same organisation.

Q. Can an “employer” change an agency workers “employment terms” (e.g. number of hours) without notice? If not, then what is the procedure to be followed?

A. In most cases, the answer to this is Yes. The “employer” (end user organisation) simply tells the agency who supplies the worker that it needs a worker for fewer hours. Generally, the contract in agency cases is between the end user and the agency, not between the end user and the worker. The end user simply contracts with the agency for the type of workers it requires and the number of hours it needs them for and, subject to the terms of the agreement between the end user and the agency, can change its requirements at any time. The agency then offers this work to one of those workers on its books – it is not an agreement between an end user and a particular agency worker, nor is there usually an agreement between an agency and an end user to provide a particular worker (although this may happen in practice if a worker has worked for an end user before and has given good service). The worker, through the agency, is simply offering to work but is not guaranteed work of any particular type or duration or by any particular end user.

Q. Can an agency worker file for unfair dismissal?

A. Generally, No. But this is subject to the caveat that they may, in certain circumstances, be implied to be employees of the end user organisation. If they are so implied, and have the requisite period of qualifying service, then they may be able to bring such a claim.

Q. What then, are an agency workers rights? A. As a worker, as distinct to an employee, an agency worker has a right to the following protection afforded by employment legislation as does an employee:-

Q. Is this situation likely to change soon?

A. This situation may change, but not overnight. In 2008 an EU directive, the “Agency Workers Directive” was issued to ensure equal treatment of agency workers and employees in some areas, and to promote greater protection for agency workers. In particular, agency workers will have a right, after 12 weeks in a given job with an end user, to equal treatment with an employee who had been recruited directly by the organisation. Equal treatment has so far not yet been fully defined – there will be ongoing consultation throughout 2009 so that the Directive can be fully implemented in the time frame allowed.