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Agency workers

Agency Workers

On 5 December 2011 agency workers (sometimes referred to as ‘temps’) who work in Northern Ireland became entitled to new rights. See guidance at new window)

The questions and answers that follow are some of those which are most often asked.

Q. What are 'Day 1' rights?

A. From the first day of their assignment, the hirer must ensure that the agency worker has access to the collective facilities offered to a 'comparable employee' at the client site. These include access to staff canteen, transportation service (eg pick-ups and drop-offs), vending machines, car parking and staff rooms. Also, the hirer must ensure that the agency worker is given access to information about permanent job vacancies at the hirer so that they are given the same opportunity as a 'comparable employee' to find permanent employment. This obligation can be discharged by a general announcement in a suitable place in the hirer’s establishment such as a notice board or via its intranet or internet.

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Q. Does an agency worker have the right to the same rate of pay as a permanent employee of the hirer after 12 weeks of continuous service with the hirer?

A. Yes, provided that there is a comparable employee who is doing the same or broadly similar job as the agency worker. Whether a job is the same or broadly similar will depend on the skills and competencies associated with the job. If there is no 'comparable employee', there is no right to the same rate of pay.

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Q. Whose responsibility is it to match the agency worker's pay?

A. The responsibility falls on the Temporary Work Agency.

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Q. Are there any exceptions to the 12 week aggregation rule?

A. The rules around the 12 week rule are complex and the law is stringent on avoidance e.g. structuring the assignments in a way to avoid the legislation. The tribunal will look at the number of assignments performed by the agency workers for the client or a related employer, the duration of those assignments, the breaks in between the assignment and whether the roles have been changed by the hirer. Breach of this aspect of the Agency Workers Regulations will expose the hirer and/or Temporary Work Agency. to a penalty of up to £5,000 per worker.

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Q. Does the agency worker have the right to the same contractual benefits as the permanent employee of the hirer after 12 weeks?

A. The right to equal treatment is limited to certain basic terms and conditions of employment. These 'relevant terms' are pay, duration of working time, night work, rest periods, rest breaks and annual leave. There is no right to the same contractual benefits (eg contractual notice period, contractual redundancy pay, share schemes and pensions).

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Q. What happens if an agency worker works for a client for ten weeks,then works for someone else and returns to the same client to work for another four weeks?

A. Continuity of employment is preserved or broken depending on a number of circumstances. The best way to understand this is to imagine you have a stop watch with a face fromone to 12. When an agency worker starts work for a client, the clock starts. There are then three scenarios:

Firstly, the clock stops and is reset to zero if there is a break of more thansix weeks between assignments or if the agency worker is being engaged to perform a substantially different role from the previous assignment.

Secondly, the clock 'pauses' if the agency worker is absent from work for less than six weeks and continues ticking when the agency worker resumes work with the same client. So, in the above example, the agency worker has met the qualifying period for pay parity. The clock also 'pauses' if the worker is on annual leave, jury service or sick leave.

Thirdly, the clock continues ticking even though the agency worker is not working for the client, eg because they are on maternity, adoption or paternity leave.

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Q. What happens if the agency worker is working for multiple clients?

A. In this case, there will be multiple clocks ticking at the same time so the Temporary Work Agency will need to keep a record of who the worker has worked for or is working for.

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Q. Is it true that there is no obligation for the Temporary Work Agency to match pay if there is a 'Swedish Derogation Contract' between the Temporary Work Agency and the agency worker?

A. Yes, but certain conditions must be satisfied. The contract, which is permanent in nature, between the Temporary Work Agency and agency worker must state that

(i) the agency worker is foregoing equal treatment on 'pay',

(ii) the agency worker must receive at least 50% of their basic pay (which cannot be less than the National Minimum Wage) during periods of non-assignments, and

(iii) there must have been at leastfour weeks' pay between assignments throughout the duration of the permanent contract between the agency worker and the Temporary Work Agency before the Temporary Work Agency can terminate the contract. Even if there is a Swedish Derogation Contract in place, the hirer should be aware that the agency worker is still entitled to their 'Day 1' rights.

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