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Agency workers

Overview
Denton-Jones, Anna - Refreshing Law Ltd
Overview
The rights of temporary staff supplied by employment agencies will depend on their employment status - as either employee or worker.

Key points

  • The rights of temporary staff supplied by employment agencies will depend on their employment status.
  • A temporary worker may or may not be an employee of the employment agency through which they are allocated work. Their status will depend on the terms of their contract and the nature of the working relationship.
  • It is possible for an individual working through a limited company to assert that they are an employee of the organisation for which they work, provided certain key criteria are met.
  • Employment businesses used to be able to use Swedish Derogation, or Pay Between Assignment, employment contracts to opt-out of equal treatment in relation to pay once the agency worker reaches 12 weeks’ service within an assignment. From 6 April 2020, the opt-out provisions of these contracts were removed. 

Recent developments 

Government announces plans for irregular hours and part year workers holiday

11 November 2023

The government announced in November 2023 that it will introduce legislation allowing for the 12.07% method of calculating holiday accrual to be used for irregular hours workers and those who work for part of the year. This will be based on the number of hours worked in the pay period, for example weekly, monthly, or even daily.  Agency workers who work for part of the year or have irregular hours will also be able to have their holiday accrual calculated in this way. This will overturn the effect of the ruling in the Harpur Trust v Brazel case.

The Workers (Predictable Terms and Conditions) Act becomes law

The Workers (Predictable Terms and Conditions) Act received Royal Assent on 18 September 2023. This Act is designed to “combat” the one-sided flexibility often present in employment relationships that involve variable or zero hours, or are for a fixed term of less than 12 months.

This constitutes a huge change for “tens of millions” of employees across the UK who currently must wait to have their hours, if any, to be confirmed. 

Acas begins consultation on predictable terms Code of Practice

On 25 October 2023 Acas opened consultation on a new Code of Practice on handling requests for a predictable working pattern, following the passing into law of the the Workers (Predictable Terms and Conditions) Act. More information is available in our 'in-depth' section. 

Consultation launched to allow agency workers to cover for striking workers

Following the High Court decision that ruled the government’s repeal of the ban on using agency workers during strike action unlawful, resulting in the ban being reinstated, the government launched consultation to once again overturn this on 16 November 2023.