Agency workers

Here we set out some advice on common queries from agency workers

How do I know if I am an employee of the agency or an agency worker?

What are my rights as an agency worker?

What are my rights when I am pregnant?

What about maternity pay?

Can I claim Statutory Paternity Pay?

What about Statutory Adoption Pay?

Can I work while I am on maternity leave?

What happens when I’m sick?

Can I request flexible working?

Can I or my partner take Shared Parental Leave?

What happens if I want to return to work after having a baby?

How do I know if I am an employee of the agency or an agency worker?

Many employment rights are available only to “employees”, and not to “workers”, so it is important to know which category you fall into. Many people who work for agencies are not employees, but it depends on your individual circumstances.  An employee is likely to have a written contract of employment with the agency, and that contract may provide that they are paid even when they are between assignments.   An employee may receive sick pay or be paid when they are on holiday.   However, even without a written contract you may still be an employee.

Broadly there will be a contract of employment if the following conditions are satisfied:

a) you do the work personally;

b) when you do the work you are under the control of the agency (for example, they decide when, how and where the work is done, they keep track of attendance or lateness, decide when holiday is taken, or are in charge of discipline);

c) there is “mutuality of obligation” – you are obliged to do the work and the agency is obliged to pay you; and

d) whether it looks (to a tribunal) like there is a contract of employment because, for example, the agency provides you with the tools you need to do the job, you are restricted from working for other people, or your agency provides you with training.

There is no simple checklist to determine if you are an employee – so seek advice if you are not sure.

What are my rights as an agency worker?

If you are NOT an employee you still have many rights including:

a) the right to be paid the national minimum wage;

b) the right to paid holiday (28 days per year for a full time worker), and rest breaks under the Working Time Regulations;

c) the right not to have your wages deducted unlawfully;

d) protection from discrimination under the Equality Act 2010; and

e) statutory sick pay, statutory maternity pay, statutory paternity pay, statutory adoption pay or statutory shared parental pay (but you will need to meet the qualifying conditions).

You should also be provided with access to workplace facilities (for example, the canteen or nursery) and be given information about employment vacancies.

After 12 weeks in an assignment you are entitled to receive the same basic working and employment conditions as the hirer’s employees. After 12 weeks in an assignment you are also allowed paid time off to attend antenatal appointments if you are pregnant.

This factsheet gives you a useful recap of your rights.

What are my rights if I am pregnant?

From the outset of your pregnancy you are entitled to take time off (unpaid) to attend antenatal appointments and you are protected from discrimination.  You are also entitled to a health and safety risk assessment (see below).

In addition, after 12 weeks in the same assignment, you are entitled to:

a)  paid time off to attend antenatal appointments if you are pregnant or adoption appointments if you are the main adopter.  This should be paid by the agency at your usual hourly rate and you should not be asked to make up the time at a later date;

b) time off (unpaid) to accompany a pregnant partner to two antenatal appointments;

c) time off (unpaid) to attend two adoption appointments if you are a co-adopter.

If you are an employee, you have additional rights so do check the relevant section of our website.

What happens if I can’t do my job because I am pregnant?

All employers are under a duty to provide safe workplaces.  If you are pregnant and there is any evidence of risk to your health and safety, or that of your unborn child, you have a right to a risk assessment.  Usually the responsibility for any health and safety adjustments will be with the hirer (the employer of the place where you work).  However, the agency must also take reasonable steps to identify any known health and safety risks and satisfy itself that the hirer has taken steps to prevent or control the known risks.  The agency must do this before you start work with the hirer.

You should write and let your agency, and the hirer, know that you are pregnant and ask them to carry out a risk assessment.  Any identified risks should be removed.

After you have completed 12 weeks with the same hirer in the same role, the hirer will have a duty to make reasonable adjustments to protect your health and safety if you are pregnant (or if you have given birth in the last six months or are breastfeeding).  If they can’t make adjustments to make the job safe, then the hirer may decide that they want someone else to do the job.  Your agency should offer you any suitable alternative work that is available.  Any alternative should be paid at least as much as the original assignment, and the terms and conditions should not be less favourable.

If the agency cannot find any suitable alternative work for you (and you have not unreasonably refused suitable alternative work offered), they should pay you for the rest of the placement that has been ended.

If you are not an employee, and you have less than 12 weeks service with a hirer, you only have the right to a risk assessment and for risks to be removed, not to an alternative or a suspension on full pay.

What about maternity pay?

Only employees (not workers) are entitled to maternity leave, but you don’t have to be an employee to receive Statutory Maternity Pay (SMP).  If you meet the qualifying conditions, you can claim SMP from your agency.  The conditions are:

a) that you have worked for the agency “continuously” for at least 26 weeks by the end of the 15th week before your expected week of childbirth.  As long as you did some work in each week, it will count as a full week.  There may be some weeks in that period where you did no work for the agency.  This does not necessarily mean that the requirement for continuity of employment is broken – if, for example, the agency had no work to offer you that week, or you were unable to work due to sickness or statutory leave, then you may still be able to claim SMP, as long as you resumed work for the agency after one of these weeks.

If your employer offers you work for no more than 26 weeks at a time, at least twice a year, and usually offers the work to people who have worked for them recently (for example, if you are a supply teacher), then even if you do not return to work after a period of sickness or time off due to pregnancy, that period may still count towards your 26 weeks of employment.

b) your normal weekly earnings in the qualifying period are not less than the lower earnings limit;

c) you give your agency at least 28 days notice of the date you want your SMP to start;

d) you provide a certificate (usually MATB1) from your midwife or doctor to confirm your expected week of childbirth.

If you are not able to claim SMP, you may still be eligible for Maternity Allowance.  More details about both are available here.

Can fathers/partners claim Statutory Paternity Pay?

If they meet the qualifying conditions, yes, but note that they will not be entitled to leave if they are not employees.  We have more information on paternity pay here.  An agency worker who qualifies  for Statutory Paternity Pay (SPP) as an “employed earner” will have to tell the agency that they do not wish to be allocated work during the one or two weeks that they choose to receive SPP.

What about Statutory Adoption Pay?

Similarly an agency worker may meet the conditions for Statutory Adoption Pay  (SAP) or SPP (adoption) if they are the partner of the main adopter.

Can I work while I am on maternity leave?

Agency workers (who are not employees of the agency) are not entitled to “leave” and they cannot exercise rights to return to work that employees have.  Nor can an agency worker carry out any “Keeping in Touch” days.  However, if you are receiving SMP, you can carry out self-employed work without it affecting your SMP.  If you are on Maternity Allowance you can only work for 10 days in any capacity without it affecting your entitlement.

If you go back to work for your agency during a period when you are being paid SMP then your entitlement to SMP will stop.  If you start being paid in a new job with an employer you did not work for in the 15th week before the expected week of childbirth, then your entitlement to SMP will end.    We have more information on the rules about what to do if you have more than one employer.

Note that similar rules apply to those on SPP, Statutory Shared Parental Pay, SAP or SPP (adoption) –  your entitlement is not affected by self-employment work, but may be affected if you work for an employer (including an agency).

What happens when I’m sick?

You are entitled to statutory sick pay if your earnings are higher than the lower earnings limit; and if you are absent from work for four consecutive calendar days. If you have been working for an agency for at least 3 months, then this entitlement should cover the period of sickness, up to 28 weeks. If you have been there less than 3 months, you should get sick pay until the end of the last assignment you had agreed to work on.

Can I request flexible working?

Not if you are an agency worker – the right to request flexible working is only available to employees who have 26 weeks’ service with their employer.

Can I or my partner take Shared Parental Leave?

If you are not an employee, you can’t take Shared Parental Leave (SPL), but some agency workers may meet the qualifying conditions for Shared Parental Pay (ShPP).   If your partner is an employee, they may be able to take Shared Parental Leave if you both meet certain conditions:

a) your partner is an employee;

b) your partner has been continuously employed for 26 weeks with their employer up to and including the 15th week before the expected week of childbirth;

c) your partner is still employed the week before SPL is due to start;

d) you and your partner share responsibility for the child;

d) you are entitled to SMP or Maternity Allowance and have curtailed (cut short) that entitlement.

More information on how to curtail your entitlement to create an entitlement of SPL for your partner is available here.

What happens if I want to go back to work after having a baby?

Agency workers don’t have a right to return to the same job after childbirth.  However, it may be sex discrimination if your agency refused to give you work or treated you less well because you had taken time off for childbirth – if this happens seek advice.

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