Seek advice if you are being treated unfairly
The 2024 Autumn Budget placed a growing burden on employers, and the Office for Budget Responsibility predicted this would result in lower wages, rising costs and 50,000 average-hour jobs being lost. Employers will undoubtedly be looking for ways to reduce staffing costs on the back of these changes. One possible solution is the greater use of agency workers; indeed, even before the Budget, 80 per cent of respondents to a survey of UK employers said they will increase their use of agency workers in the next two years.
Your rights as an agency worker
Under the Agency Workers Regulations 2010, you are an agency worker if you are ‘supplied by a temporary work agency to work temporarily under the supervision and direction of a hirer’. The regulations ensure you are given legal rights as soon as you start working for an agency, including:
- Pay – you are entitled to be paid the national minimum wage or the national living wage on time and in the agreed fashion. The agency must give you a pay slip and may not make unlawful deductions from your wages.
- Protection against discrimination – you cannot be discriminated against because of a ‘protected characteristic’ under the Equality Act 2010.
- Holiday – you are entitled to the statutory minimum amount of 5.6 weeks’ paid annual holiday if you work full-time hours (part-time workers are entitled to a pro-rata equivalent) and can ask for holiday leave as long as you give the required amount of notice.
- Sickness – you cannot be forced to work if you are too sick and you should be entitled to statutory sick pay.
- Work hours and rest breaks – you do not have to work more than an average of 48 hours a week, and you are entitled to at least one day off work a week and the same statutory rest breaks as other workers and employees.
- Illegal fees – agencies are not allowed to charge you a fee to register with them or to find you work, and they must tell you if they are going to charge you for extra services, such as a DBS check, CV writing, or a uniform. The agency also cannot legally charge you a fee or stop you if you accept an offer to work permanently for the end client.
- Ending assignments – unless your contract says otherwise, you can end an assignment without giving notice.
- Detrimental treatment – if you report a health and safety issue, you cannot be treated worse than before (for example, being bullied/ harassed or having your hours reduced).
After you have worked on the same assignment, through the same agency, for 12 weeks you acquire even more rights. This includes the right to the same rate of pay, holiday, working patterns, rest breaks (and some of the parental and pregnancy rights) – above and beyond the statutory minimum – as that given to direct employees of the hiring organisation.
Why might a dispute with an agency arise?
Aside from any breach of your rights under the Agency Workers Regulations 2010, you might have a valid reason to take legal steps against your agency if they stop giving you work on the grounds of: discrimination; whistleblowing; being (or not being) a trade union member; complaining about your legal rights being breached; or if they put you on a list of people not to employ.
You might also feel you are being treated unfairly: in the way your work is scheduled or rotas are set; how your grievance or disciplinary process has been handled; if you are being made to work in poor conditions; if you are being subjected to tougher security checks than others; or if you have been stripped of work responsibilities.
What can you do if you are being unfairly treated by an agency?
If you have a dispute with your agency your first port of call is to discuss the matter with them and try to settle it informally. If this fails, you should make a formal complaint in line with the agency’s complaints procedure, or you can complain to the Recruitment and Employment Confederation (REC) if your agency is a member and has breached the REC code of practice.
Other legal remedies you can explore will differ depending on what right has been breached, what your contract says and, in some instances, whether you are classed as an employee or a worker (you are usually a worker not an employee unless your contract says differently). For example, if your contract says that you are an employee of the agency but you are not given any more work you will effectively have been dismissed; if the dismissal is unfair, you will have a valid employment tribunal claim. Workers, on the other hand, are not generally guaranteed work from the agency and you will only be able to take legal action if your contract guarantees a set number of work hours.
Regardless of whether you are classed as a worker or an employee, you can bring a claim to an employment tribunal if your agency has denied you a right under the Agency Workers Regulations 2010, or subjected you to detrimental treatment because you tried to assert one of these rights. If you are classed as an employee, being dismissed for asserting a right automatically counts as unfair dismissal.
The employment tribunal may award you compensation, make declarations of your rights as a worker and make recommendations to the agency if your claim is successful. If your dispute with the agency is over pay you are owed, unlawful fees you were charged, or because it is getting an umbrella company to pay you (without informing you who the company is, the services it provides or what fees might be involved) you can report the agency to the Employment Agency Standards Inspectorate which may launch an investigation.
How we can help
Raising a grievance or bringing legal action against your employment agency may seem like a daunting prospect but you have rights which should be upheld and if your agency breaches them, we are here to help.
Our dispute resolution team can assess whether you have a valid complaint and then outline all of your options. We can help you write complaint letters to the agency or outside bodies and speak to the agency to try to reach a resolution without the need for legal action.
If your case needs to go to the employment tribunal, we will gather together all the evidence needed to strengthen your case, sort out all the paperwork and be by your side offering advice and representation when your case is heard.
For further information, please contact Norman Hunter-Goulder in the dispute resolution team on 01480 702 207 or email [email protected].
Norman Hunter-Goulder LLB (Hons), Associate
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