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Legal Terms - Agency Workers
Agency workers are individuals who are provided to an employer by an agency, typically on a temporary or contingent basis. They are often brought in to fill in for staff who are absent due to illness or until a permanent staff member is hired. Workers may also be provided on a "temp to perm" agreement, where they start as temporary employees but have the potential to become permanent. In such cases, the agency typically receives a fee when the worker is transferred to permanent employment.
Historically, agency workers have been devoid of job protection rights. The Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended by the (Amendment) Regulations 2019) offered a certain level of protection. However, the issue of employment rights persists due to the challenge of determining the actual employer. These workers are sometimes described as having a "triangular" working arrangement, as they perform their task for the client but receive payment from the agency. They may have a legal agreement with the agency (McMeechan v Secretary of State for Employment [1996] EWCA Civ 1166), with the client (Dacas v Brook Street Bureau [2004] EWCA Civ 217), or in some cases, with neither party involved (Montgomery v Johnson Underwood Ltd [2001] EWCA Civ 318; also refer to Bunce v Postworth Limited [2005] EWCA Civ 490). The courts have examined the presence of a consistent pattern of mutual obligations between the parties in order to determine whether a worker should be classified as an employee (Consistent Group Lts v Kalwak and others [2008] EWCA Civ 430).
The courts have shown a willingness to entertain the idea of an implicit employment agreement between a worker and the client who is utilizing their services, although this would seldom occur (James v London Borough of Greenwich [2008] EWCA Civ 35).
Over the past ten years, agency workers have gained advantages from the implementation of the Agency Workers Regulations 2010, which were based on the EU Agency Workers Directive 2008/104. The Regulations grant the right to "equal treatment" to agency workers who have performed the same position, either on one or several assignments, for a continuous period of 12 weeks with the same hirer.
Agency workers possess the entitlement to file a lawsuit in an employment tribunal if assignments are organized in a manner that evades the jurisdiction of the Regulations. "Equal treatment" refers to the principle that an agency worker should receive the same fundamental working and employment circumstances as they would have received if they were directly hired by the company to perform the same job under a formal employment contract. Basic working and employment conditions encompass provisions regarding compensation and working hours, including regulations on rest breaks and the right to yearly leave.
The Regulations do not grant agency workers the ability to lodge a complaint against wrongful dismissal or assert certain employment rights, as they do not classify agency workers as "employees". Earlier case law continues to be significant in this regard.
Agency workers are individuals who are provided to an employer by an agency, typically on a temporary or contingent basis. They are often brought in to fill in for staff who are absent due to illness or until a permanent staff member is hired. Workers may also be provided on a "temp to perm" agreement, where they start as temporary employees but have the potential to become permanent. In such cases, the agency typically receives a fee when the worker is transferred to permanent employment.
Historically, agency workers have been devoid of job protection rights. The Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended by the (Amendment) Regulations 2019) offered a certain level of protection. However, the issue of employment rights persists due to the challenge of determining the actual employer. These workers are sometimes described as having a "triangular" working arrangement, as they perform their task for the client but receive payment from the agency. They may have a legal agreement with the agency (McMeechan v Secretary of State for Employment [1996] EWCA Civ 1166), with the client (Dacas v Brook Street Bureau [2004] EWCA Civ 217), or in some cases, with neither party involved (Montgomery v Johnson Underwood Ltd [2001] EWCA Civ 318; also refer to Bunce v Postworth Limited [2005] EWCA Civ 490). The courts have examined the presence of a consistent pattern of mutual obligations between the parties in order to determine whether a worker should be classified as an employee (Consistent Group Lts v Kalwak and others [2008] EWCA Civ 430).
The courts have shown a willingness to entertain the idea of an implicit employment agreement between a worker and the client who is utilizing their services, although this would seldom occur (James v London Borough of Greenwich [2008] EWCA Civ 35).
Over the past ten years, agency workers have gained advantages from the implementation of the Agency Workers Regulations 2010, which were based on the EU Agency Workers Directive 2008/104. The Regulations grant the right to "equal treatment" to agency workers who have performed the same position, either on one or several assignments, for a continuous period of 12 weeks with the same hirer.
Agency workers possess the entitlement to file a lawsuit in an employment tribunal if assignments are organized in a manner that evades the jurisdiction of the Regulations. "Equal treatment" refers to the principle that an agency worker should receive the same fundamental working and employment circumstances as they would have received if they were directly hired by the company to perform the same job under a formal employment contract. Basic working and employment conditions encompass provisions regarding compensation and working hours, including regulations on rest breaks and the right to yearly leave.
The Regulations do not grant agency workers the ability to lodge a complaint against wrongful dismissal or assert certain employment rights, as they do not classify agency workers as "employees". Earlier case law continues to be significant in this regard.
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