By: Simon B
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Agency and Temp Workers
Underemployment law, the term “worker” refers to employees of a business, or anyone else who has a contract to undertake work or services for another party who is not a customer or client. People defined as workers are granted certain rights under employment law, including payment regulated by the National Minimum Wage, limitations on the number of hours they can be made to work, and the provision of a certain amount of paid holiday.
However, there are many different types of worker, and there are different rules and regulations which apply to them, so you may find that your particular situation is governed by different rules. Below is a list of all the different types of worker and how employment law affects them.
Agency workers, also known as ‘temps’, are eligible for many of the same rights as permanent or fixed-term workers, although they are not likely to receive as many benefits as those who are directly employed by the company.
Any agency should consult a candidate before putting them forward for a role with a prospective employer. The definition of an “agency worker” is established through payment – if an employee is paid by the agency, they are an agency worker.
If you find a permanent role with a company through an employment agency, then you will be entitled to the employment rights afforded to any permanent member of staff, rather than being considered an agency worker.
What is an agency worker?
Agency workers have either a written ‘contract of employment’ or a ‘contract for service’ between themselves and the recruiter finding them roles.
Agencies are not entitled to charge job seekers for finding them work, with the exception of those operating in the entertainment and modelling industries. However, employment agencies may charge for other, related services they offer, like CV writing or training.
The company receiving the worker is responsible for paying a fee to the agency, covering the wage and a recruitment charge. The agency then pays the worker themselves with the money received.
Unfortunately, despite the many benefits of temporary work, which include flexibility of scheduling and the opportunity to sample a wide range of jobs, many of the rights received by permanent employees regarding redundancy pay or unfair dismissal are off-limits to temporary staff. The hiring company is often eligible to end the temporary workers with little or no notice, depending on the contract terms.
Temporary employment rights
While temporary workers do not have the same rights as full-time staff, they can still expect to be treated fairly at work.
Temporary workers must still be given paid holiday, regular breaks and reasonable working hours, and pay in line with the National Minimum Wage.
You should also be allowed access to any facilities which are available to permanent employees in similar roles to yours – these might include such things as canteens, common rooms or crèches.
Equal treatment after 12 weeks
Once you have worked for 12 weeks in one particular role, you may well qualify to be treated equally to any permanent worker employed in a comparable role. This means that you would be entitled to receive the same pay agreements, working time expectations and annual leave as a similar, permanent worker would receive. This is not affected by whether your work is full-time or part-time.
However, breaks in employment can affect your entitlement to these rights. If there is a break of more than 6 weeks between roles with one particular hirer, or you end up doing a job which is substantially different from your previous one, the period for which you are considered to have worked for them resets to zero.
Some situations instead mean a ‘pause’ in your entitlement. The amount of time you are considered to have worked for one employer will stop during these periods, but resume when you begin work again with them. This happens if you take a break from your role for 6 weeks or less (or up to 28 weeks if you are ill or hurt), if you take holiday time, if the workplace has temporarily closed so that you cannot attend work, or if you have to attend jury service (up to 28 weeks).
If you take time off due to pregnancy, take a break within 26 weeks of giving birth, or take adoption or paternity leave, you are essentially considered to still be working for the purposes of receiving these rights – this period will be added on to the amount of time you worked for the employer.
Just like any other worker, temporary workers must be paid at least the National Minimum Wage.
A worker has the right to be paid by the agency for all worked hours, regardless of whether a timesheet has been completed, although the agency has the right to delay payment while conducting an investigation into whether you actually worked the hours. The investigation must be concluded within a reasonable time period.
In the event that the agency has not been paid by the employer for a service provided, the worker could still be entitled to the agreed payment amount. If a company is not satisfied with the services provided then this is a matter for the agency and the company to resolve, but you must still be paid for the hours you did work.
Terms of employment
An agency is lawfully obliged to set out written terms of employment before they begin seeking roles for you. These terms should include:
- a notice period
- relevant pay details
- details of employment, i.e. if you are under a contract of employment or contract for services
- leave and holiday entitlement
As with an employer, an agency is not allowed to alter terms and conditions without consulting with the worker.
In the event that the worker agrees to any changes set out by the agency, a new document with a fully detailed account of amendments must be produced, signed and countersigned to record acknowledgement and approval from the worker.
Agencies must always be honest in the job descriptions presented to workers and advertised externally. Applying to both temporary workers and permanent placements, below are points of basic information that should be received on the commencement of a role:
- hourly rate or salary
- commencing date
- an approximation of how long the role will last
- working hours, with any details of flexible working
- person specification for the role
- details regarding duties
- health and safety risks and controls
- any expenses to be incurred
Personal information restrictions
All information retained by an agency is highly confidential and all workers’ details are protected by the Data Protection Act – meaning they cannot give out information about you without your permission unless this relates to legal proceedings or the request comes from a professional body of which you are a member.
Additional restrictions on what employment agencies can do prevent them from:
- Signing a contract, or entering into any contract, verbal or written, on the behalf of a worker
- Filling a gap in a workforce brought about by a strike or industrial action
Apprenticeships are a type of employment aimed at helping someone begin a career in a particular field, especially one in which specialist skills are needed or particular qualifications required.
Apprentices count as employees and are therefore granted all the employment rights normally available. Despite receiving training, apprentices are still there to do a job and are therefore entitled to a regular wage, reasonable working hours including breaks, and holidays based on the amount of time they work.
Essentially, any of the rights found elsewhere in this section and granted to employees are also applicable to apprentices, with the exception of the National Minimum Wage, which has a special rate for those engaging in apprenticeships.
As of 1 October 2011, the minimum wage for apprentices is £2.73 an hour.
The National Minimum Wage for Apprentices applies to:
- apprentices aged 16 to 18
- apprentices aged 19 or over, within in the first year of their apprenticeship.
Apprentices aged over 19 who have been in their role for over a year are entitled to the regular National Minimum Wage for their age group, being treated like a regular employee in this regard.
Minimum wages for agricultural workers may differ.
Prior to April 2012, it was very difficult to dismiss an apprentice except for the worst forms of misconduct, as their purpose there was considered to be for educational reasons and therefore it was felt that it should not be easy for an employer to get rid of them. However, new legislation has meant that apprentices are now considered to be working under a contract of employment, which means they may be dismissed just as an employee can.
Essentially, apprenticeships which were formed prior to April 2012 are weighted far more in favour of the apprentice. These types of apprenticeship were considered to be primarily for the purposes of learning, rather than having the apprentice do a job for the employer.
Nowadays, the focus is on doing a job for an employer while simultaneously learning a trade, meaning that an underperforming apprentice can be dismissed just like any other employee. Of course, the reason for dismissal must still be fair and appropriate procedures must be followed.
A casual worker is one who is under no contractual obligation to commit to particular working hours, as with the permanently employed workforce, but instead has the option of accepting work that is offered.
The extent of employment rights allocated to a casual worker can be hard to establish at a glance because it can at times be difficult to establish exactly what their working relationship with the employer actually entails. There are a number of different criteria which are used to identify what rights the worker has, but it comes down to whether they count as an employee, a worker or a self-employed individual.
If a casual worker counts as an employee, they will be entitled to the same rights as any other employee of the company. The employment rights of an employee are the strongest out of these three groups, protecting them against unfair dismissal, and, among other things, giving them the right to statutory sick pay, maternity, paternity and adoption pay, maternity and paternity leave, providing protection on a TUPE transfer and giving entitlement to a statutory redundancy payment.
In order to count as an employee, there must be an expectation (whether set out in a contract or agreed in other ways) that you are to work personally for the organisation in question, and there must be what is known as ‘mutuality of obligation’. This means that your purported employer must be obliged to offer work to you, and you must be under obligation to complete it rather than being able to pick and choose.
Legally, being an employee means that you have a contract of employment, but since a contract of employment can be hard to define, it is the two requirements above which are used to establish your employee or non-employee status.
If you are not an employee, you may still turn out to be a worker, which gives you fewer rights than a fully-fledged employee. You are a worker but not an employee if you personally complete tasks for another party while not acting as a commercial enterprise yourself, or act for them under any other contract that is not an employment contract.
If you are a worker, you will possess some basic rights. You will be protected against some kinds of discrimination, be subject to the Working Time Regulations, be entitled to the national minimum wage and protected against unlawful deductions from your wage, and receive protection under health and safety and whistleblowing legislation.
If you are neither an employee nor a worker, then you are likely doing work for the company in question on a self-employed basis, in which case the only employment rights you have in your dealings with the employer are limited discrimination protection, any specific rights which are set out in the contract under which you are working for them and certain common law protections.
A temporary worker, also known as a ‘temp’, is often employed by an agency – though in some cases they may be a direct-hire – to fill a temporary gap in employment, whether this is in order to cover an employee on leave, compensate for demand or simply supply flexible support to a busy workplace.
They have a number of the employment rights enjoyed by any other worker, though they may receive fewer of the benefits and boons offered by their employer.
Despite this, there are some rights which they will not be entitled to – for example, redundancy pay and unfair dismissal laws do not apply to them. Their job security is often fraught, which their employer sometimes able to put an end to their role with minimal notice.
Temporary employment rights
Though you may not have as many rights when doing temporary work, your employer must still treat you fairly.
You can still expect paid holiday, appropriate breaks and fair working hours. You are also entitled to the National Minimum Wage, and receive protection from discrimination.
Unless the employer can make a reasonable argument otherwise, any amenities open to other employees in a similar line of work should also be available to yourself.
Equal treatment after 12 weeks
After working for 12 weeks in a specific role, you could be in line to receive the same rights as any permanent employee in a comparable job, including hours, worked, leave entitlement and wage agreements.
It is important to note, though, that if there are any breaks in your employment, they may affect the period of time you must work to receive such rights.
Not working for your employer for over 6 weeks, or switching to a completely different role, means that the counter resets.
Taking a break from work for less than 6 weeks, however, will simply pause the counter – once you return to work, you start accruing time towards your 12 weeks again, but the time you off did not count towards it. This also applies if you take up to 28 weeks off work due to being injured, sick or required to attend jury service, if you take time off for a holiday, or if you cannot work due to a temporary closure of the workplace.
If your break is owing to pregnancy, occurs within the 26 weeks after childbirth, or is due to paternity or adoption leave, you continue to accrue time towards the 12 weeks during this period, although you are not working.