Agency Workers

There are currently around 17,000 agencies which operate in the UK and the conduct of these agencies is regulated by the Employment Agencies Act 1973.

The Employment Agencies Act, amongst other things, gives guidelines on how an employee’s experience should be assessed, it prohibits the charging of fees upfront for most agencies and makes it an offence for agencies to advertise jobs which don’t exist.

The Conduct of Employment Agencies and Employment Businesses Regulations 2003 supports the Employment Agencies Act and brings with it it’s own set of rules and regulations to which agencies must adhere.

These regulations state that:

  • The agency cannot share the personal details of an agency worker
  • The agency cannot send agency workers to employers to act as strike breakers
  • The agency cannot advertise non-existent positions
  • The agency cannot withhold an agency worker’s pay, even when the agency worker has no timesheets
  • The agency cannot charge the agency worker any fees for providing their work
  • The agency will be required to record the standards of health and safety of the employer where the agency worker is sent
  • The agency will be required to provide the agency worker with written documentation of that worker’s hours, pay and should inform them of their contract status

However, because agency workers are not considered employees they rarely have any rights under the Employment Rights Act 1996. What they do have to protect them is the Temporary and Agency Workers (Equal Treatment) Bill which basically calls for the equal rights of agency workers who do the same or similar job as permanent employees.

The bill states that:

  • The agency worker is entitled to equal pay
  • The agency worker is entitled to equal paid holidays
  • The duration of time an agency worker spends working should be equal to that of a permanent employee in the same job
  • The agency worker is entitled to the same amount of rest periods
  • The agency worker is entitled to equal time off for parenting reasons (women only)
  • The agency worker is entitled to have the same action taken in instances when they have been discriminated against on the grounds of their ethnic origin or race, age, disabilities, sex, religion or beliefs or sexual orientation

What the bill doesn’t protect the agency worker against is:

  • The agency worker’s right to paternity or parental leave
  • The agency worker’s right to redundancy pay
  • The agency worker’s right to a written contractual statement
  • The agency worker’s right to a reasonable term of notice before dismissal
  • The agency worker’s right to put in a request for flexible working time
  • The agency worker’s right to governmental compensation when the employer the agency worker was working for goes insolvent

However, the bill has enabled more agency workers to follow up cases of unfair dismissal through employment tribunals although, this too is a tricky area because the agency worker would first have to prove that they were classed as an employee by the employer responsible for their dismissal and secondly, would need to be able to prove that their dismissal was in fact unfair.

Generally, to prove a case of unfair dismissal, an individual will need to show that one of their rights has been breached by the employer but, if they are not classed as an employee then most of the basic rights they would have under the Employment Rights Act 1996 do not actually apply to them.

This would mean that there are very few rights other than those covered in the bill which can be breached and none of those rights cover the area of dismissal.

Another act to protect agency workers was introduced after the cockling disaster at Morecambe Bay in 2004 where a group of agency workers were cockle picking at night when they were cut of by the incoming tide and 21 of the workers were drowned.

The sad fact is that these underpaid agency workers risked and lost their lives for the promise of just £5 for every 25 kg of cockles they managed to collect.

The act brought in after this disaster was The Gangmasters (Licensing) Act and it requires all agencies providing work in the food packing, shell fishing and agricultural sectors to operate under a licence which enforces the fair treatment of all employees.

These types of agencies are often known as ‘gangmasters’, hence the name of the act.