Your employment rights as an agency worker.
When you’re working through an agency, it’s important to know if you’re classed as an ’employee’ or a ‘worker’ under employment status law. It affects what you’re entitled to and what your obligations are.
If you’re self-employed and take on an assignment through an agency, this could mean you’re classed as an employee or worker for the duration of the assignment.
Check your employment status
Your rights from the start
As an employee or worker, you have rights straight away, such as:
protection against discrimination
National Minimum Wage entitlement
a minimum of 5.6 weeks’ holiday entitlement
An employer must not cause you ‘detriment’ because you:
reasonably believe being at work or doing certain tasks would put you in serious and imminent danger
take reasonable steps over a health and safety issue, for example complaining about unsafe working conditions
inform your employer about your health and safety issue in an appropriate way
Detriment means you experience one or both of the following:
being treated worse than before
having your situation made worse
Examples of detriment could be:
your employer reduces your hours
you experience bullying or harassment
your employer turns down your training requests without good reason
you are overlooked for promotions or development opportunities
If you are an employee, you could have a case for automatically unfair dismissal if you’re dismissed in these circumstances.
From the first day of an assignment, you have the same right as direct employees of the hiring organisation to use any shared facilities and services, including:
the canteen or food and drinks machines
childcare services, for example a creche
car parking or transport services
Your rights after 12 weeks
You get more rights once you’ve worked on the same assignment at the same hiring organisation for 12 weeks. This is called the ’12-week minimum qualifying period’ under the law.
The rights cover:
pay
holiday
sick leave
working hours and rest breaks
access to permanent job vacancies at the hiring organisation
parental time off
A week counts as any 7 days that you work in, from the day your assignment began.
For example, if an assignment begins on a Wednesday and you work 3 of the days up to the following Tuesday, this counts as a week towards the 12-week qualifying period.
A week still counts towards the 12-week qualifying period if you do not work because of:
pregnancy
childbirth
maternity leave that you take during pregnancy and up to 26 weeks after the birth
paternity leave
adoption leave
Shared Parental Leave
Example
You’re on a 1-year assignment and you’re pregnant. You’ve been working for 8 weeks when you call in sick with a pregnancy-related illness. Any weeks you’re off sick with that illness will still count towards your 12-week qualifying period.
A week does not count towards the 12-week qualifying period if:
the total break you have between 2 periods of work is no more than 6 weeks
you’re absent due to sickness or jury service for 28 weeks or less
you take any of your holiday entitlement
the workplace shuts down, for example for Christmas or industrial action
Your 12-week qualifying period will start again if you:
go back to the same assignment after a break of more than 6 weeks as long as it’s not due to any of the reasons in the lists above
go back to the same role after 28 weeks’ absence due to sickness or jury service
start a new assignment with a new hiring organisation
Under the Agency Workers Regulations, agencies are not allowed to create patterns of assignments that stop you reaching the 12-week qualifying period.
Pay rights
As an agency worker, you have the same rights as other employees and workers to:
be paid at least the National Minimum Wage or National Living Wage
not have any deductions from your pay that are not legal
be paid on time and by the agreed method
receive payslips
Your pay may vary from assignment to assignment, so it’s a good idea to make sure:
you agree to your pay rate before an assignment begins
you’re not going to get less than the rate agreed in your terms and conditions or contract
Agencies usually provide timesheets. If they do not, it’s their responsibility to pay you for your hours worked. It’s still a good idea to keep your own record of your working hours.
If you’re not receiving at least National Minimum Wage or National Living Wage, you should try to resolve the issue with your agency first. If it cannot be resolved informally, you can either:
report to HMRC
make a claim to an employment tribunal
Delays in pay
An agency is only allowed to delay a payment for a reasonable amount of time when they need to confirm hours you worked.
If they have problems getting payment from the hiring organisation, the agency must still pay you on time.
The right to the same pay
After you’ve reached the 12-week qualifying period, you’re entitled to the same rate of pay as direct employees of the hiring organisation. Under the law this is called ‘the right to equal treatment to pay’.
The right to equal treatment to pay includes:
basic pay
holiday pay that’s more than the legal minimum
individual performance-related bonuses
commission
overtime pay
allowances for working shifts or unsociable hours
The right to equal treatment to pay does not include:
bonuses linked solely to company performance or to reward long-term loyalty
expenses
enhanced maternity, paternity and adoption pay and Shared Parental Pay
company pension schemes
redundancy that’s more than statutory
sick pay that’s more than Statutory Sick Pay
guarantee payments
season ticket loans
paid time off for trade union duties
Changes to the law on the right to the same pay
Before 6 April 2020, some agencies might have arranged to pay an agency worker between assignments to stop them getting the right to the same pay (‘derogating from the right to equal treatment to pay’).
However on 6 April 2020 the law changed so that:
these contracts are no longer valid
the agency worker can still make a complaint about such a contract, even if they received it from the employer before 6 April 2020
the agency can still offer an agency worker a permanent employment contract and pay between assignments, but the agency worker will be entitled to equal treatment to pay after 12 weeks
Holiday rights
You have the same right as other workers and employees to a minimum of 5.6 weeks’ paid holiday each ‘leave year’ when you’re on an assignment.
The leave year is how an employer works out how much holiday a year you’re entitled to and when you should take it by. When you’re an agency worker, it usually runs from the date you started your assignment.
You build up (‘accrue’) holiday entitlement from the first day of your assignment.
You also have the right to:
carry over holiday you’ve not taken to a new assignment
get paid for any holiday you’ve not taken if you leave the agency
After the 12-week qualifying period, you have the right to the same amount of holiday and holiday pay as direct employees of the hiring organisation.
If they give holiday above the legal minimum of 5.6 weeks, you can choose how you want to use it. You can either:
add it to your holiday entitlement
get paid for it on top of your hourly or daily pay rate and clearly itemised on each payslip
get paid for it in one go at the end of your assignment and clearly itemised on your final payslip
Asking for holiday
Your agency might need an amount of notice when you ask to take holiday, so it’s a good idea to check. Even if they do not, you should give them notice that’s at least twice the amount of holiday you want.
For example, if you want to take 1 week of holiday, you should ask your agency at least 2 weeks before you want your holiday to start.
This is so there’s enough time for them to arrange cover for your work, if necessary.
Agencies can refuse a holiday request but they must allow you to take it at another date. You must take your statutory holiday entitlement in each leave year.
Find out more about asking for and taking holiday
Sick leave and pay rights
You have the same right as other workers and employees to:
not work when you’re too ill
get Statutory Sick Pay (SSP), if you’re eligible for it
Check your eligibility for SSP on GOV.UK
Your agency and hiring organisation might have set out in a written agreement or policy how and when you need to contact them if you cannot work. If not, you should tell them as soon as possible the reason and how long you’re likely to be off sick for.
Agency workers are not entitled to the same amount of sick pay as direct employees of the hiring organisation at any point.
Pension rights
Employment agencies must automatically enrol all their agency workers into a pension scheme within 3 months of the start of a contract.
If you do not want to be enrolled into the agency’s pension scheme, you must tell the agency and the pension provider you want to opt out of the scheme.
Find out more about pension schemes and rules from The Pensions Regulator.
Working hours and rest breaks
You have the same rights as other workers and employees to:
work no more than an average of 48 hours a week
choose to work more by ‘opting out’ of the 48-hour week
a minimum 20-minute rest break if you work more than 6 hours
11 hours’ solid rest in any 24-hour period
1 day off work each week
After the 12-week qualifying period, you also have the right to the same working patterns and rest breaks as direct employees of the hiring organisation. This includes any entitlement to longer lunch breaks or other breaks.
Find out more about rules on working hours and rest breaks
Permanent work
The hiring organisation must allow you to find out about job vacancies in the same way as their direct employees.
If the hiring organisation wants to employ you as a permanent employee, by law your agency must not stop this.
The agency might be able to charge a fee to the hiring organisation in some cases, but it must not charge you.
Parental rights
Agency workers who are becoming or already are parents have the right to:
not be treated unfairly because of pregnancy or maternity
paid time off for pregnancy (‘antenatal’) appointments when pregnant, after reaching the 12-week qualifying period
unpaid time off to attend antenatal appointments with a partner who’s pregnant
If you do not have employee status, you’re not entitled to maternity, paternity or adoption leave or Shared Parental Leave, but can still stop working to care for your child. You need to tell your agency the dates you cannot work.
While off caring for your child, you may be entitled to one of the following:
Statutory Maternity Pay
Maternity Allowance
Statutory Paternity Pay
Statutory Adoption Pay
Shared Parental Pay
Find out more about pay for parents caring for a new child
Pregnancy and agency work
Your hiring organisation must carry out a risk assessment for you when you tell them in writing that:
you’re pregnant
you’ve given birth within the last 6 months
you’re breastfeeding
They should review the risk assessment regularly.
By law, agency workers must not be treated differently to other workers.
If there is a health and safety risk to you or your unborn baby, your hiring organisation must remove it.
If it’s not possible to remove the health and safety risk to you or your unborn baby, your hiring organisation must tell your agency.
Your agency must either:
find you another suitable assignment
suspend you on full pay for the length of your original assignment
Under the Employment Rights Act 1996 and the Agency Workers Regulations 2010, you would usually need to meet the 12-week qualifying period to be entitled to a different assignment or suspension on full pay.
If your agency finds you other suitable work but you refuse it without a valid reason, they do not have to pay you.
If you’re unsure about your health and safety rights as an agency worker and you’ve just had a baby or are pregnant, you might need to consider getting legal advice.
Find out more from the Health and Safety Executive (HSE) on health and safety rights for:
agency workers
new mothers and pregnant workers
Protection from discrimination
You have the same protections from discrimination as other workers and employees.
You must not be discriminated against because of a ‘protected characteristic’, for example your sex, age or disability. The agency, hiring organisation and their staff could all be held liable.
Find out more about discrimination and the law
Ending assignments and dismissal
You and the hiring organisation do not have to give any notice to end an assignment early unless it’s clearly written in your contract or assignment information.
You should tell your agency if you want to end the assignment.
If you want to leave the agency, check the contract or written agreement. Usually you need to tell them in writing.
An agency can usually end their relationship with you – or ‘dismiss’ you – without notice or reason unless:
your contract says otherwise
you’re an employee of the agency and have been employed for at least 1 month
Going through a disciplinary procedure
Agencies should have rules and procedures for dealing with disciplinary issues.
The agency is likely to stop finding you work if they get reports of misconduct or poor performance.
If you’re an employee, the agency should follow a disciplinary procedure to investigate the alleged misconduct or poor performance.