According to the Government’s website, an agency worker is a person who has a contract with an agency but works temporarily for a hirer. Agencies can include recruitment agencies, for example ‘temp agencies’. A person is not an agency worker if they:
- Find work through an agency but work for themselves (self-employed)
- Use an agency to find permanent or fixed term employment
From day one, agency workers are entitled to use the same shared facilities as permanent employees (e.g. canteen, car park or transport services). After 12 weeks in the job an agency worker qualifies for the same rights as someone employed directly. These rights include: equal pay, automatic pension enrolment and paid annual leave.
Royal Mail is an organisation which relies heavily on agency workers and it has recently been subject to a claim under the Agency Worker Regulations 2010 (the Regulations).
The agency worker brought a claim under the Regulations. He claimed that after 12 weeks, he was given a one-hour break but was only paid for 30 minutes whereas direct employees were paid for the full hour. As an agency worker he got 28 days annual leave and direct employees got 30.5 days. On the basis that agency workers were paid more to compensate for this, the Employment Tribunal dismissed his claim.
On appeal the Employment Appeal Tribunal (EAT) held in the agency worker’s favour. They took the view that the Regulations were clear in that they state that agency workers are entitled to the same basic terms and conditions as a direct employee.
The EAT held that 'the fact that the Claimant was paid more overall for the whole shift does not change the fact that he was paid significantly less for the one-hour rest break' Royal Mail was found to have breached the Regulations.
According to ACAS, the total number of agency workers in the UK currently stands at around 865,000 and this figure is expected to rise to one million by 2020. Employers taking on agency workers need to be aware of the rights that agency workers enjoy. It is fair to say that if a large employer like Royal Mail can fall foul of the Regulations, it must be a trap for smaller employers as well.
To discuss this or any other employment related issue, contact us.