What rights do agency workers have?

Agency worker regulations

A recent ruling from the EAT has highlighted the important distinctions between the rights of standard employees and the rights of agency workers. In the case of Coles v Ministry of Defence (MoD), the EAT ruled in favour of the MoD and dismissed the claimant’s case.

The details of the case

Mr. Coles was an agency worker on assignment for the MoD. After a round of redundancies, Mr. Coles’ position was filled by another permanent employee who had been placed in a redeployment pool, something Mr. Coles claimed breached his rights as an agency worker. The case hinged on the Agency Worker Regulations 2010 and the Temporary Agency Worker Directive. Mr. Coles claimed he had not been properly informed of the vacancy (of what he considered ‘his’ job) or given the opportunity to interview for it.

The EAT held in favour of the MoD, stating that; ‘the principle of equal treatment is confined to working time and pay.’ The MoD had informed Mr. Coles of the vacancy through their internal vacancy advertising system, which was deemed acceptable under the regulations and directive. The EAT also held that, while Mr. Coles did have a right to be informed of the vacancy, his rights were not infringed upon when he was not offered an interview or given preferential treatment over other employees.

Who are agency workers?

An agency worker is one who has a contract with an agency and is temporarily supplied to an employer for work. These are not those who are self-employed and have found temporary work through an agency (for example, some short-term contractors like Web Developers who complete a project, but remain self-employed). Agency workers are also not those who are on Managed Service Contracts (i.e. cleaners) where a specific service is provided to an company, and instructions for day-to-day tasks come from the agency, not the company being supplied.

Agency workers have some statutory employment rights:

  • Agency workers are classed as ‘workers’ not ’employees
  • After 12 week’s of continuous work, they are given the same rights as those in the same job.
  • They are entitled to the following statutory rights:
    • National Minimum wage;
    • paid annual leave;
    • breaks and limits on working time;
    • protection from unlawful deductions from wage;
    • protection from discrimination under the Equality Act 2010;
    • Health and Safety regulations

Agency workers can’t:

  • claim unfair dismissal;
  • claim statutory redundancy pay;
  • claim any parental leave (including maternity and paternity);
  • request flexible working;
  • demand a written statement of main terms and conditions of employment.

If you need help or advice on employing agency workers, get in touch with Deminos on: 020 7870 1090 or email: [email protected]

Author chris swindells

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