Beacon Recruitment Services Ltd Blog

Agency Worker Regulations – Information for businesses

The Agency Workers Regulations – October 2011

To start with we know that all our clients treat their temporary workers in a fair and equal manner however we do need to inform you of the new regulations and the responsibilities on both sides. It will mean that we need to work just as closely with you, if not closer!


The Agency Workers Regulations 2011 will come into force in England, Scotland and Wales on 1st October 2011 and will give temporary agency workers the right to equal treatment in terms of the same basic working and employment conditions as they would have been entitled to had they been recruited directly by you to do the same job.


Quick potted history

The regulations stem from the EU Temporary Workers Directive 2008 which gives agency workers the right to the same pay and other working conditions enjoyed by a hirer’s own staff. The regulations do not alter agency workers’ employment status, i.e. they do not make an agency worker an employee of either the hirer or the agency. In other parts of the EU, this right to equal treatment comes into effect from day one of an assignment; the UK has secured a derogation period of 12 weeks (this was agreed by the TUC and the CBI). This means that an agency worker will only be entitled to equal treatment once he/she has completed 12 weeks’ of service in the same role with the same hirer (there are two exceptions, the Day One rights, which are detailed later).

An agency worker is an individual who is supplied by a temporary work agency to work temporarily under the supervision and direction of a hirer and who has a contract of employment or a contract for services. These regulations do not apply to workers who are genuinely in business on their own account (i.e. genuinely self-employed).


What does equal treatment mean?

It means that a qualifying agency worker receives the same basic working and employment conditions as if they were recruited directly. The same basic working and employment conditions relate to:

  • Pay
  • Duration of working time
  • Night work
  • Rest periods
  • Rest breaks
  • Annual leave


And from day one agency workers are also entitled to the following rights:

  • Temporary workers have access to vacancies and
  • Access to on site facilities such as crèche & childcare facilities, canteen facilities, car parking and the provision of transport services.

This doesn’t mean that the temporary worker is automatically entitled but would be subject to the same criteria to access the facility, i.e. crèche & childcare as someone directly recruited.


It is your responsibility to ensure that agency workers receive these day one rights.


Equal pay will include:

  • Basic salary
  • Bonuses or commission payments (attributable to the quantity and quality of work carried out by the agency worker)
  • Shift allowance
  • Overtime payments
  • Holiday pay and
  • Vouchers (i.e. luncheon vouchers)


Equal pay does not include:

  • Benefits in kind
  • Childcare vouchers
  • Pension payments (temporary workers will be entitled to a pension under separate legislation due in 2012)
  • Occupational sick pay
  • Redundancy pay
  • Notice pay
  • Advances and loans
  • Share and option schemes
  • Maternity, paternity and adoption pay
  • Loyalty bonuses or any bonus payments which are not directly attributable to the amount or quality of the work performed by the temporary worker
  • Guarantee payments
  • Expenses and
  • Health/life insurance


Pay scales and benefits outlined in company handbooks and any collective agreements must be taken into account when establishing equal treatment. Some companies will have complex formulae for the calculation of bonus payments not all of which will clearly distinguish between company performance and individual performance. Jim, our HR consultant may be able to give better guidance on this.


The 12 week qualifying period

The agency worker will be entitled to equal treatment once he/she has worked for 12 continuous weeks in the same role (whether it is full time or part time). This also applies should the agency worker have worked through another (or several) agencies doing the same role at the company. It does mean that you will need to keep accurate records of when the agency worker worked with you, start and finish date, for how long, at what pay rate.

A new qualifying period will begin only if a new assignment with your company is substantively different (and that doesn’t mean simply a change in job title) or if there is a break of more than six weeks between assignments in the same role.

The qualifying period will be paused if the worker takes:

  • A break of 6 weeks or less
  • Certified sick leave for no more than 28 weeks
  • Statutory/contractual maternity, adoption or paternity leave or
  • Time off for public duties (including jury service)


Where an agency worker takes a break which is related to pregnancy or childbirth, or takes maternity, adoption or paternity leave, the agency workers will be treated as if he or she has continued working in an assignment.


Therefore an agency worker does not have to work for 12 continuous weeks via the same agency to qualify for the right to equal treatment. They can accrue the 12 weeks’ qualifying period over a much longer period of work and through more than one agency.


We will be working on how best to obtain this information from agency workers as to their temporary assignments. We know some will be fine in keeping work records but we also know that some will not!


Holiday entitlement

As you know agency workers are entitled to the statutory leave of 28 (pro rata’d) but should your company offer more then the agency worker will be entitled to any additional holiday entitlement that an employee would receive, probably meaning an extra cost implication in terms of administration, calculation & payment.


Pregnant Agency Workers

After the 12 weeks qualifying period agency workers will be entitled to paid time off to attend medical appointments and antenatal classes. We should both ensure that an assignment is not terminated solely on the grounds of pregnancy as this would constitute direct sex discrimination against the pregnant agency worker and compensation for direct sex discrimination is unlimited.


Establishing equal treatment

These new regulations require an agency worker to be treated as if he/she had been recruited directly to do the same job. Therefore equal treatment will need to be established in respect of terms and conditions that apply to a comparable workers or a comparable employee engaged in the same role.

An example would be a factory production line; the agency worker may be working next to a worked recruited directly. This direct recruit could serve as a comparator to establish parity in pay and working conditions. Both of us will be compliant if this is achieved. If not then there may be an identifiable pay scale or a starting rate which could be used as a reference point.


Anti-avoidance measures

The regulations contain anti-avoidance measures to prevent agencies and companies from structuring assignments in a way to prevent the agency workers from reaching the qualifying period. If an agency worker takes a case to tribunal and finds that the regulations have been deliberately avoided, they can award an agency worker compensation of up to £5000.

This will mean that as an agency we will have to ask you for much more detail about the position, length of assignment, reason for requiring an agency worker, etc and this information will need to be in a form which will need to be signed by the company.


For the government publication please see


Please do contact us as I know you will have lots of questions which we will try to answer.


None of us will know the full effect of this new legislation for a little while but by continuing to work in close partnership with you we can all take care to make this work.





Jan Dixon FIRP


Beacon Recruitment Services Limited

01243 790879

07974 374660



This entry was posted on Monday, August 15th, 2011 at 4:47 pm and is filed under Industry News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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