From the 1 October 2011, the Agency Workers Regulations 2010 (the Regulations) will give agency workers working in England, Scotland and Wales new equal treatment rights. This means that when you are taken on by an agency and supplied to work for the agency’s client (the hirer) you will be entitled to work under the same basic employment rights that would have applied if the hirer took you on directly. These new rights will apply after you have worked in the same role for the same hirer for 12 weeks. 

However, from the first day of an assignment agency you will also be entitled to access collective facilities provided by the end user hirer to its own workers and to be advised by the hirer of relevant vacancies which arise within the hirer’s business. These are also referred to as ‘Day One rights’. 

The Agency Workers (Northern Ireland) Regulations 2011 will come into effect on 5 December 2011 and give the same rights to agency workers working in Northern Ireland. 

 

 

• an individual; 

• who is supplied by a temporary work agency to work temporarily under the supervision and direction of a hirer; and who 

• has a contract of employment with the agency, or any other contract with the agency to perform work or services personally. 

 

 

From day one of an assignment, as an agency worker, you will be entitled to the following two rights: 

 

i. The right to access information on job vacancies 

The hirer you are working for must inform you of any relevant job vacancies in their organisation and ensure that you have the same access as other workers to the information available. This does not mean that you will automatically have the right to be employed by the hirer; you must follow the usual recruitment process that they use. (This does not apply in the situation where the hirer has a freeze on external job advertisements where any vacancies are held for internal moves in order to prevent potential redundancies). 

 

ii. The right to access collective on-site facilities 

You will also be entitled to access collective facilities such as crèche and childcare facilities, canteen facilities, car parking and the provision of transport services that are provided to the hirer’s own workers. 

This access to facilities can be refused if your hirer has ‘objective grounds’ for doing so. In practice this means that if there is a waiting list for childcare facilities or a car park space, you will not automatically be entitled to a place but can be subject to the same criteria to access the facility as someone directly recruited by the hirer. You will not be entitled to ‘amenities’ such as subsidised gym membership and season ticket loans as they are considered to be a reflection of the long-term relationship between an employee and a hirer. 

The hirer has sole responsibility for ensuring that you receive these Day One rights. 

 

What do you mean by ‘the same basic working and employment conditions’? 

 

On completion of the 12 week qualifying period, as an agency worker you will be entitled to equal treatment in respect of basic working and employment conditions relating to: 

• pay 

• duration of working time 

• night work 

• rest periods 

• rest breaks and 

• annual leave. 

 

Equal pay will include: 

• basic salary 

• bonuses or commission payments related to the quantity and quality of work carried out by you 

• shift allowance 

• overtime payments 

• holiday pay and 

• vouchers (e.g. luncheon vouchers, providing they have a fixed monetary value and are not part of a salary sacrifice scheme). 

 

Equal pay does not include: 

• benefits in kind 

• vouchers which are a salary sacrifice arrangement between an employer and an employee 

• pension payments (temporary workers will be entitled to a pension under separate legislation due to come into effect in 2012) 

• occupational sick pay 

• redundancy pay 

• notice pay 

• advances and loans 

• share and option schemes 

• maternity, paternity and adoption pay (over and above the statutory entitlement) 

• loyalty bonuses or any bonus payments which are not directly attributable to the amount or quality of the work performed by you 

• guarantee payments 

• expenses and 

• health/life insurance. 

Holiday entitlement – As an agency worker you are already entitled to the statutory leave entitlement of 28 days (pro-rata’d). If you qualify for equal treatment you will also be entitled to any additional holiday entitlement the hirer provides to direct recruits. The Department of Business, Innovation and Skills have advised agencies that this additional entitlement can be rolled up and paid in lieu of taking the time off, as long as the amount paid is set out clearly and separately on your pay slip. 

 

 

The Regulations are not retrospective. Therefore any time spent on an assignment up to and including 30 September 2011 will not count towards your qualifying clock. The earliest date you can qualify for equal treatment is 25 December 2011 subject to any breaks you take.