MYTH BUSTER: “Agency workers become your employee after 12 months.”

Well actually, they don’t – providing the Employer takes care to avoid a few pitfalls – read on!

Most (but not all) Agency Workers do not have a contract of employment with any of the Agencies they work with. As such they are not generally entitled to some of the employment rights that employees enjoy, such as unfair dismissal, paid maternity leave and redundancy payments. So, when a business hires in an Agency worker the person is not an employee – of either the hirer or the Agency.

Since October 2011, Agency workers rights have improved quite a bit thanks to Regulations. After 12 weeks working on an assignment with the same hirer, an Agency worker now becomes entitled to the same basic terms of employment as the employees they are working alongside doing similar work. Put simply, this means that their basic pay, hours, breaks and holiday entitlement have to at least match those of the employees of the hiring Company. It is the duty of the Agency to ensure that this is complied with.

These new rights do not automatically convert the Agency Worker into an employee, even after a certain period of time with the hirer. What can happen however is that a contract of employment becomes “implied” through custom and practice, This can happen where the Employer treats the Agency worker as one of its own staff for long enough for the relationship to develop into an implied employment contract.

This is almost a natural consequence of the relationship continuing for any length of time; the worker feels more and more like one of the team.

It is important for Employers to remain aware that an Agency Worker is not their Employee and they should not share in some of the benefits that only go to employees, such as offering discounted products or travel allowances for example. Employers are also advised not to use Company procedures such as the formal disciplinary or performance management policies when dealing with Agency Workers; these are written for “employees”, so do not use them with an Agency worker.

Another example. One client is a major motor manufacturer. They hold daily team meetings about production, and Agency workers take part in these. However, once a month, senior management travel to the UK from the Parent business to talk about how the business is performing. This meeting is identified as being for employees only, so Agency staff do not participate.

This is the right approach to take, as it avoids the Agency workers starting to feel employed by the Business!

Need some more advice?

To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700


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