Agency workers are often used to help businesses on a short term basis, either to act as cover for absent staff or to cope with unexpected increases in work loads. A key question in any such relationship concerns the employment status of agency workers.

Under normal circumstances, an agency worker negotiates a Contract for Services between him or herself and the agency. In these circumstances, the agency worker is likely to be treated by any Employment Tribunal as a worker and not as an employee. Sometimes, however, agency workers will seek to show that there was an implied Contract of Employment between him/herself and either the end agency or the end user i.e. the employer. If an agency worker can show that they are an employee, they will benefit from the full range of rights available to any other type of employee.

Some of the factors which have led the Courts to imply that a Contract for Employment exists for an agency worker include:

  • The reality of the relationship between the parties
  • The subsequent taking on of an agency worker as an employee
  • Acting as though the agency worker were a wholly integrated member of staff
  • The end user’s day-to-day control of the agency worker
  • Length of continuous service

Factors which have led the court not to imply that a Contract for Employment exists for an agency worker include:

  • An agency worker’s acceptance of terms that were unfavourable compared to those of permanent employees
  • A refusal by the end user to take the agency worker on to a permanent employment contract
  • A lack of obligation on the end user to give notice to the worker
  • An agency worker’s willingness to work for different end users

Agencies are prohibited from committing acts of unlawful discrimination in relation to the terms on which they offer to provide any of their services, refusing or deliberately omitting to provide their services or in the way they actually do provide their services.

In 2011 the Agency Workers Regulations came into effect in the UK.  These regulations were designed to give temporary workers no less favourable terms and conditions as comparable permanent workers.  These rights are only applicable after an agency worker has completed a 12 week qualifying period in the same job. 

 

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