pay between assignments agency

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UK: Agency Workers Entitled to Pay Parity 

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From 6 Apr 2020, UK temporary agency workers employed on a “pay between assignments” contract —also known as a “Swedish derogation” contract — will be entitled to pay parity with directly hired employees after 12 continuous calendar weeks in the same role. Currently, these temporary workers receive a certain amount of pay between temporary assignments in exchange for waiving their right to pay parity. The changes — which are expected to affect around 130,000 workers and will impact employers relying on temporary workers — feature in The Agency Workers (Amendment) Regulations 2019 . The Employment Standards Inspectorate will issue guidance to employment agencies and other stakeholders. 

Details of the Changes

Pay parity is defined as the same basic working and employment conditions as comparable workers who are directly recruited by the same business. The measures follow recommendations in the 2017 Taylor Review, and they will revoke regulations 10 and 11 of the current law that provides for the option to employ temporary workers on a pay-between-assignments contract. This type of  contract was introduced when the UK implemented the EU directive 2008/104/EC on temporary agency work.

The amending regulations provide the following:

• Agency workers with existing pay-between-assignments contracts on 6 Apr 2020 must be told in writing by 30 Apr 2020 that they are no longer opted out of their equal pay rights. These workers can bring claims against their employers for not issuing the statement in time.
• “Pay” includes any payment in connection with an agency worker’s employment, including certain bonus payments, overtime payments, shift allowances, premiums paid for unsociable working hours and holiday pay. The regulations exclude bonuses payable for the amount or quality of work done by the worker; company sick pay; maternity, paternity and adoption pay; pension contributions and severance pay. 
• Workers will be protected from detriment and unfair dismissal if they try to assert their rights under the regulations. 

Related Resources

• The Agency Workers (Amendment) Regulations 2019 (Legislation.gov.uk)
• Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on Temporary Agency Work (EurLex, 5 Dec 2008)
• Taylor Review of Modern Working Practices (11 Jul 2017)

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Making pay between assignments work

The ‘pay between assignments’ section of the Agency Workers Regulations is controversial. Employment adviser Rehan Pasha has the lowdown.

Rehan Pasha, employment adviser at law firm Squire Sanders considers the pros and cons of taking on temporary workers as PBA staff from a recruitment agency and the potential pitfalls to avoid.

The Agency Workers Regulations 2010 came into force on 1 October 2011, with the main aim of equalising agency workers’ pay with that of their employed counterparts after a 12-week qualifying period. However, the regulations also set out an alternative approach, namely the ‘Pay Between Assignments’ model (PBA). In a PBA contract, agency workers give up the potential for pay equality in return for a guarantee that they will be paid for a minimum of four weeks when they’re not working. They become employees of the recruitment agency that places them (and thereby obtaining the legal protections that only an employee can enjoy).

Several newspapers, trade unions and employee representative groups have questioned whether this PBA model is entirely lawful or if it is a loophole that will be closed off once the first cases have been decided at an employment tribunal. Many recruitment agencies, and their clients, are placing their workers on PBA contracts and this situation has led to further confusion about the legislation.

The first point to make clear is that the PBA model is a lawful process. Not only is it expressly set out as an option in the regulations themselves, but also in the European directive upon which the regulations are based. So it seems unlikely, although theoretically possible, that the government will fundamentally revise the Agency Workers Regulations to make the PBA model unlawful.

Although the issues regarding pay for the worker entering into these PBA contracts has been discussed at length in the media, the advantages for such a worker have been somewhat overlooked.

If an individual is ‘temping’ there is no obligation upon the recruitment agency to find that temp any work. The situation is quite different under a PBA contract, as the recruitment agency is then under a positive obligation to be continually looking for and offering the PBA employee additional work. Not only that but the recruitment agency is required to offer work of a type and at a rate of pay and location previously agreed with the PBA employee.

That in turn leads us onto the most significant single benefit – the right to be paid for at least four weeks, even if the worker is not carrying out any work, before the recruitment agency is able to lawfully terminate a PBA contract. The sum that the agency worker is paid is 50 per cent of the maximum salary he received over the previous 12 weeks. This provision makes it more costly for a recruitment agency to dismiss a PBA employee compared to a standard employee if both have only been employed for a brief period of time. It is also a benefit that non-PBA workers are not entitled to.

Although the recruitment agency will potentially be paying its PBA employees a lesser hourly rate than they would if they were temps, there are some significant limitations in taking the PBA route.

Under a PBA contract, the individual becomes an employee of the recruitment agency and obtains significant employment law protection rights that he would not have as an agency worker.

The most important of these rights include those not to be unfairly dismissed and to obtain a redundancy payment. In addition PBA employees will be able to bring grievances against their recruitment agency employer and will most likely need to be taken through a formal process when they are being disciplined or dismissed, both of which can take significant time to manage and can result in employment tribunal claims.

The recruitment agency will need to provide employer’s liability insurance for all PBA employees, in addition to ensuring that they have access to a pension. The time and effort involved in actively seeking further work for the PBA employees and ensuring that they are appropriately managed should not be underestimated and these costs have to be absorbed and borne by the employer recruitment agency.

Ensuring that taking on agency workers is still cost-effective for businesses whilst increasing the legal protection and pay that agency workers receive can be a difficult circle to square. Although it seems fair to say that PBA employees may receive a lower rate of pay than those agency workers who have worked for an end user for more than 12 weeks and benefit from pay equality under the AWR, this focus entirely disregards the other advantages workers gain as a result of entering into a PBA contract.

For many individuals in the current economic climate, having the promise of regular, sustained and protected employment may be preferable to a short-term higher rate of pay but with uncertainty around any longer-term engagement.

Todd was Editor of GrowthBusiness.co.uk between 2010 and 2011 as well as being responsible for publishing our digital and printed magazines focusing on private equity and venture capital. Connect with... More by Todd Cardy

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Your employment rights from the start - Agency workers

• Working through an agency

Your employment rights from the start

• Your employment rights after 12 weeks
• If there's a problem with the agency

When you start working for an agency you have rights straight away. For example:

• protection against discrimination
• National Minimum Wage entitlement
• a minimum of 5.6 weeks' holiday entitlement
• work hours and rest breaks
• finding out about vacancies at the hiring organisation

Protection from discrimination

You have the same protections from discrimination as other workers and employees.

You must not be discriminated against because of a 'protected characteristic'. The agency, hiring organisation and their staff could all be held liable.

Find out more about discrimination and the law

As an agency worker, you have the same rights as other employees and workers to:

• be paid at least the National Minimum Wage or National Living Wage
• not have any unlawful deductions from your pay
• be paid on time and by the agreed method
• receive payslips

Your pay may vary from assignment to assignment, so it's a good idea to make sure:

• you agree to your pay rate before an assignment begins
• you're not going to get less than the rate agreed in your terms and conditions or contract

Agencies usually provide timesheets. If they do not, it's their responsibility to pay you for your hours worked. It's still a good idea to keep your own record of your working hours.

If you're not receiving at least National Minimum Wage or National Living Wage , you should try to resolve the issue with your agency first. If it cannot be resolved informally, you can either:

• report to HMRC on GOV.UK
• make a claim to an employment tribunal

Delays in pay

An agency is only allowed to delay a payment for a reasonable amount of time when they need to confirm hours you worked.

If the agency has problems getting payment from the hiring organisation, they must still pay you on time.

Holiday rights

You have the same right as other workers and employees to a minimum of 5.6 weeks' paid holiday each 'leave year' when you’re on an assignment.

The leave year is how an employer works out how much holiday a year you're entitled to and when you should take it by. When you’re an agency worker, the leave year usually runs from the date you started your assignment.

You 'accrue' (build up) holiday entitlement from the first day of your assignment.

You also have the right to get paid for any holiday you've not taken if you leave the agency.

Asking for holiday

Your agency might need an amount of notice when you ask to take holiday, so it's a good idea to check. Even if they do not, you should give them notice that's at least twice the amount of holiday you want.

This is so there's enough time for them to arrange cover for your work, if necessary.

Agencies can refuse a holiday request but they must allow you to take it at another date. You must take your statutory holiday entitlement in each leave year.

Find out more about asking for and taking holiday

Irregular hours workers and part-year workers

There are different rules about holiday for irregular hours workers and part-year workers. The rules apply to leave years starting on or after 1 April 2024.

Someone is an irregular hours worker if, under their contract in that year, the number of hours they work in each 'pay period' is wholly or mostly variable. A pay period is how often someone gets paid, for example, weekly or monthly.

Someone is a part-year worker if their contract:

• says they are required to work only part of that year
• says there are periods of at least a week when they are not required to work and which they are not paid for
• is in place all year around, including when they're not working

Find out more about holiday for irregular hours workers and part-year workers

Work hours and rest breaks

You have the same rights as other workers and employees to:

• work no more than an average of 48 hours a week
• choose to work more by 'opting out' of the 48-hour week
• a minimum 20-minute rest break if you work more than 6 hours
• 11 hours' solid rest in any 24-hour period
• 1 day off work each week

Find out more about rules on working hours and rest breaks

Sick leave and pay

You have the same right as other workers and employees to:

• not work when you're too ill
• get statutory sick pay, if you're eligible for it

Check your eligibility for statutory sick pay on GOV.UK

Your agency and hiring organisation might have set out in a written agreement or policy how and when you need to contact them if you cannot work. If not, you should tell them the reason as soon as possible and how long you're likely to be off sick for.

Agency workers are not entitled to the same amount of sick pay as direct employees of the hiring organisation at any point.

Permanent work

The hiring organisation must allow you to find out about job vacancies in the same way as their direct employees.

If the hiring organisation wants to employ you as a permanent employee, by law your agency must not stop this.

The agency might be able to charge a fee to the hiring organisation in some cases, but it must not charge you.

Detriment related to health and safety

An employer must not cause you 'detriment' because you:

• reasonably believe being at work or doing certain tasks would put you in serious and imminent danger
• take reasonable steps over a health and safety issue, for example complaining about unsafe working conditions
• inform your employer about your health and safety issue in an appropriate way

Detriment means you experience one or both of the following:

• being treated worse than before
• having your situation made worse

Examples of detriment could be:

• your employer reduces your hours
• you experience  bullying
• you experience  harassment
• your employer turns down your training requests without good reason
• you are overlooked for promotions or development opportunities

If you are an employee, you could have a case for automatically unfair dismissal if you're dismissed in these circumstances.

Using shared facilities

From the first day of an assignment, you have the same right as direct employees of the hiring organisation to use any shared facilities and services. This includes:

• the canteen or food and drinks machines
• childcare services, for example a creche
• car parking or transport services

Ending assignments and dismissal

You and the hiring organisation do not have to give any notice to end an assignment early. This is unless it's clearly written in your contract or assignment information.

You should tell your agency if you want to end the assignment.

If you want to leave the agency, check the contract or written agreement. Usually you need to tell them in writing.

An agency can usually 'dismiss' you without notice or reason unless:

• your contract says otherwise
• you're an employee of the agency and have been employed for at least 1 month

Going through a disciplinary procedure

Agencies should have rules and procedures for dealing with disciplinary issues.

The agency is likely to stop finding you work if they get reports of misconduct or poor performance.

If you're an employee, the agency should follow a disciplinary procedure to investigate the alleged misconduct or poor performance.

Find out more about disciplinary procedures

If you like, you can tell us more about what was useful on this page. We cannot reply – so do not include any personal details, for example your email address or phone number. If you have any questions about your individual circumstances, you can contact the Acas helpline .

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• Agency workers and rights

Agency workers and rights between assignments

The recent Employment Appeal Tribunal case of Donkor-Baah v University Hospitals Birmingham NHS Trust and ors (" Donkor-Baah ") has held that, on the facts of the case, the Claimant, an agency worker, was not entitled to suspension pay between the termination of one assignment and the beginning of the next. 

Agency workers

Agency workers are widely used in the UK, particularly within the healthcare sector. Since 2019, shortages of doctors and nurses mean that companies providing freelance staff to the NHS are seeing their turnover increase dramatically, with the NHS spending £4.6bn on agency staff in 2022/23 .

The Agency Worker Regulations 2010 set out the rights that agency workers have. Regulations 5 and 7 tell us that after an agency worker has been working in the same role with a hiring company for 12 continuous weeks, they become entitled to the same basic working and employment conditions as they would be if they were engaged by the hiring company directly. The most obvious '12 week right' is the right to the same pay. 

Agency workers' contracts often refer to 'assignments' and treat each posting with the hiring organisation as an isolated assignment. Assignments will often be short in duration, which allows the agency worker to undertake work for various hirers.

The contracts will also often contain a clause stating that the agency will endeavour to, but is not obliged to offer assignments to the agency worker. Similarly, the agency worker is normally not obliged to accept any assignment offered to them. 

Well drafted contracts will also stipulate that the nature of the work is temporary, that there may be periods when no suitable work is available and that the agency and hiring company does not incur any liability to the agency worker if they fail to offer them any assignments. 

This type of working arrangement regularly leads to disputes where assignments are cancelled, or the agency stops offering assignments to the worker, for example whilst a conduct issue is investigated. 

These questions were examined by the EAT in Donkor-Baah.

Donkor-Baah v University Hospitals Birmingham NHS Trust and ors

Ms Donkor-Baah was supplied by an agency to work shifts at the Trust as a staff nurse. Her work was booked on a shift-by-shift basis, whereby each shift was treated as an individual assignment. An alleged incident occurred during Ms Donkor-Baah's shift on 10 February 2019, following which she was told to go home early whilst the matter was investigated. Ms Donkor-Baah was not offered any assignments during the investigation, which did not conclude until November 2019. She was not paid in that period. At the end of the investigation, Ms Donkor-Baah was allowed to book shifts again. 

Ms Donkor-Baah, argued that by virtue of her '12 week rights', she was entitled to full pay throughout the period of February - November 2019 ("the Investigation Period"), where she said that she was suspended. It was not disputed that workers directly employed by the Trust would have been entitled to full pay during a period of suspension. In making this argument, Ms Donkor-Baah argued that there was an overarching 'agency relationship' between herself and the Trust that remained after the end of each assignment, and that it was this relationship that had been suspended by the Trust, thus entitling her to pay. 

The EAT found that Ms Donkor-Baah was not entitled to pay during the Investigation Period. In determining whether there is an overarching agency relationship, the EAT looked at Regulation 5, and concluded that the 12 week rights relate only to the period where an agency worker is actively working on an assignment for the hiring company. The right does not extend to periods when the agency worker is not working an assignment. The EAT noted that Ms Donkor-Baah's assignment had ended on 10 February 2019 after she was sent home, and she did not work any further assignments until November 2019. As such, during this period, she was not a worker and was not entitled to pay.

Within their commentary, the EAT noted that the concept of an overarching relationship would be difficult to operate in practice, particularly in a case where an agency worker is supplied to different hiring companies, as is regularly the case. 

This is a helpful case for agencies and hirers who face similar wages claims for periods where assignments are stopped/suspended. However, it does not mean that all claims of this nature are destined to fail. There may be cases where the agency worker can establish that assignments are stopped for discriminatory reasons, or because they have blown the whistle, in which case they may still be able to seek a remedy for losses.

The case is also a good reminder for agencies to check their standard terms to ensure that there are appropriate protections in place to minimise the risk of a Tribunal finding that there is an overarching contract between assignments. If you need any assistance with regard to the issues raised in this update please do not hesitate to get in touch.

Authored by Lauren Parkinson and Neal Mellor 

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Joanne Frew

Global Head of Employment and Pensions

Neal Mellor

Senior Associate

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• Recent Cases
• Employment Tribunal Gives Clarification on Agency Workers' "Pay Between Assignments…

Employment Tribunal Gives Clarification on Agency Workers' "Pay Between Assignments Contracts"

Posted on 31 Jan 2013

New employment contracts issued to agency workers by an employment agency complied with the “Swedish derogation” in the Agency Workers Regulations (“AWR”).  It did not matter that the agency workers worked for the same hirer before and after the new contracts were issued.

Regulation 10 of the AWR provides an exception from the right of agency workers to the same pay they would have received if recruited directly by the hirer.  The exception only applies where they enter into a permanent contract of employment with the agency, under which they continue to be paid a minimum amount when they are between assignments.  These are often called “pay between assignments contracts” or “Swedish derogation contracts”.  In order for the exception to apply, the contract of employment must have been entered into “before the beginning of the first assignment under that contract.”

In Bray v Monarch Personnel Refuelling (UK) Ltd , an employment tribunal considered whether Regulation 10 applied in circumstances where agency workers who worked continuously on assignments for BP were told that any current assignments would cease on 30 November 2011.  Fresh assignments would start on 1 December 2011, provided that Swedish derogation contracts were accepted.  All of the agency workers signed and returned the contracts by the end of the November, except H who returned his on 12 December and all of them reported for work as usual with BP on 1 December 2011.

The issue before the tribunal was whether the contracts had been entered into “before the beginning of the first assignment under that contract”, in circumstances where the agency workers had worked for BP throughout.  The tribunal ruled that they had.  An assignment does not refer to the entire continuous period during which an agency worker has been hired out to a hirer, but to a particular period of time during which the agency worker is hired out to the hirer.  The fact that there had not been a gap between assignments did not change the fact that they had been engaged on separate assignments.  The assignment which started on 1 December was the first assignment under the new contract.

The tribunal also found that the contracts had been entered into before the assignment under that contract.  Those who had signed the contracts before 1 December had entered into the contracts on the date of signature and H had accepted the new contract by attending for work as normal on 1 December.  It did not matter that his acceptance of the new contract was the same day as the first assignment under it.  It was sufficient that he had been given the protection Regulation 10 requires by being given the relevant terms several days before he began the first assignment. 

The employment tribunal decision in this case provides welcome clarification on an issue which has been open to debate.  It confirms that it is possible for an employment agency to create a Swedish derogation contract where agency workers remain working for the same hirer.  It will be necessary for a new assignment to be entered into after the contract has been entered into, but the fact that the new assignment is with the same hirer and there is no gap will not be a problem.  Had the tribunal come to the opposite view, this would have resulted in employment agencies only being able to enter into Swedish derogation contracts where workers are hired out to a new hirer.

Although the decision is not binding on other tribunals hearing similar cases, it will be a comfort to employment agencies that have entered into or are contemplating entering into Swedish derogation contracts.

The articles published on this website, current at the date of publication, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your own circumstances should always be sought separately before taking any action.

Agency workers: pay between assignments

As an agency worker you are entitled to certain additional employment rights. Your agency may offer you a permanent contract and pay you between assignments, but this will mean you will not be entitled to equal treatment on pay.

Being paid between assignments

Your temporary work agency may offer you a permanent contract of employment before the first assignment under the contract  and pay you between assignments when there is no work (pay must be at least 50 per cent of the pay you receive while on assignment and at least the National Minimum Wage). This provision is sometimes called Swedish derogation.

This will mean, however, that you will not be entitled to equal treatment on pay (including holiday pay) after 12 weeks in the same job. All other entitlements will apply in the same way as for other agency workers.

You cannot be forced to sign this type of contract and it may not suit everyone.

If your agency offers you a permanent contract it must set out in writing:

• minimum pay rates and how they are calculated
• the location of work reflecting where you are willing to travel
• minimum and maximum expected hours of work
• this must be at least one hour a week
• the nature of the work
• a statement that makes it clear that you are giving up the right to equal treatment with regard to pay

When you're not working you must receive pay between assignments.This must be:

• at least 50 per cent of the rate of pay from your previous assignment calculated at the highest rate of pay received during any one week
• at least the National Minimum Wage

You need to check that the terms of the contract meet your needs before signing it.

The agency can't ask you to come into the agency for an hour to avoid paying you between assignments. You'll need to be on a genuine assignment with a hirer on the basis of the terms in your contract.

While the contract is in place you will be entitled to pay between assignments until the agency finds you another job.

The pay between assignments doesn't apply to periods between two short assignments which fall in the same week, for example, if you work on Monday and do not work again until Friday. You will only be paid during the weeks where you have no work at all but are available to work.

If you're not on an assignment and the agency refuses to pay you, you could make a claim to an Industrial Tribunal.

Ending a pay between assignments contract

If the agency wants to end the contract it must first give you four weeks' pay between assignments. The four weeks' pay (which is the minimum) could either be at the end of a single assignment or between a series of assignments.

At the end of the contract, if you have already received the four weeks' pay, you will not get the payment again. The contract can end earlier for other reasons if, for example, you resign.

If the agency terminates your contract, you might be entitled to certain rights as you have a contract of employment. These may depend on the length of your service but could include:

• redundancy pay

Getting equal treatment

Agencies and hirers shouldn't structure arrangements in a way that stops you getting the protection provided by pay between assignments contracts. If they do, they could be legally challenged.

If  the agency offers you different hours from the expected hours of work included in your contract you can challenge this.

Where to get help

The Labour Relations Agency (LRA) offers free, confidential and impartial advice on all employment rights issues.

If you are a member of a trade union you can get help, advice and support from them.

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Equal treatment for agency workers

A TUC guide to the Agency Workers Regulations 2010

This information is intended to be a brief introduction to equal treatment rights for agency workers. The information is for guidance only and should not be regarded as an authoritative statement of the law. It is always a good idea to seek advice from your union (or from an advice agency if not a union member) on your specific situation before taking any action.

This guidance does not apply to agency workers in Northern Ireland.

New equal treatment rights - summary

Day one rights, equal treatment rights after completing the 12 week qualifying period, establishing equal treatment, anti-avoidance measures, rights for pregnant agency workers and new mothers, enforcing your rights.

Since 1 October 2011, agency workers have gained new equal treatment rights as a result of the Agency Workers Regulations 2010 (AWR).

From day one of an assignment agency workers have a right to:

• Equal access to collective facilities provided by the hirer
• Information and the opportunity to apply for vacancies in the hirer's workplace

After 12 weeks in the same role with the same hirer agency workers have the right to:

• equal treatment on pay, holidays and working time
• improved pregnancy rights

Who has the right to equal treatment?

You will be covered by the new equal treatment rights if:

• you are placed by an agency on temporary assignments where you work under the direction and supervision of a hirer and ,
• you are an employee or worker of the agency (i.e. you have a contract of employment or a contract to perform work or services personally with the agency).

You are not covered by equal treatment rights if

• you use an agency to find permanent work with a hirer.
• you are genuinely self-employed and run your own business

For more information on whether you are likely to be an employee, a worker or self-employed, please see the Employment Status section of the Basic Rights @Work website.

Equal Treatment on collective facilities and amenities

Since 1 October 2011, agency workers have the right not to be treated less favourably than a comparable employee in relation to the collective facilities and amenities provided by the hirer including; canteens and staff rooms, toilet / shower facilities, crèches, and transport services (such as local pick-ups and drop offs).

If a popular facility such as a workplace crèche has a waiting list, you have the right to request to use this facility and join the waiting list on the same basis as the hirer's employees.

You can compare your treatment withan employee or worker of the hirerwho doesthe same or broadly similar work and works or is based at the same establishment as you (or at a different establishment owned by the hirer if there are no comparable workers at your site).

There are likely to be limited circumstances where hirers can justify not providing equal treatment on collective facilities. The cost of providing a facility to an agency worker is unlikely by itself to be sufficient reason.

Vacancies with the hirer

Since 1 October 2011, agency workers have the right to be informed about vacancies with the hirer while on assignment with them. The aim is to give you the same opportunity as a comparable worker to find a permanent job with the hirer.

The hirer can choose how to inform staff about the vacancies but you should have the same access to this source of information and opportunity to apply as the hirer's employees.

Equal treatment on pay

After 12 weeks in the same role with the same hirer, you will have the right to the same pay, as if you had been directly recruited by the hirer to do the same job.

Pay includes: hourly pay; salaries; piece rates; holiday pay; overtime pay; shift, unsocial hours and risk rates; bonuses and performance related pay connected to an individual's workandvouchers or stamps, such as luncheon vouchers or childcare vouchers, that have a monetary value and can be exchanged for goods or services.

Pay does not include: pensions; sick pay; redundancy pay; maternity, paternity or adoption pay; bonuses linked to company performance or which reward loyalty or length of service; expenses or payments linked to financial participation schemes such as share ownership schemes.

The Regulations do not affect your existing entitlements to statutory sick pay; statutory maternity, paternity or adoption pay. Agency workers will also have pension entitlements under the new automatic pension enrolment. The Department for Work and Pensions (DWP) and National Employment Savings Trust (NEST) have prepared a useful handout explaining the new pension arrangements: http://www.dwp.gov.uk/docs/auto-enrol-and-wpr-the-facts.pdf . If you are unsure, seek advice from your union or from an advice agency.

Agency workers on pay between assignment contracts

The Agency Workers Regulations provide an exemption from the right to equal pay. If you are an employee of an agency and have a right to be paid between assignments where the agency is unable to find work for you, you will not be entitled to equal pay , even where you have worked for more than 12 weeks in the same role for the same hirer.

In order for this exemption to apply:

• You must have a contract of employment with the agency; and
• You must not be employed on a fixed term contract; and
• Your contract must include terms on the following: the minimum pay rates you will receive; where you will be expected to work; your expected hours of work during any assignment; the maximum hours you will be expected to work on an assignment; the minimum hours the agency will guarantee you while on assignment (which must be at least one hour); and the type of work you will be expected to undertake; and
• You must be paid by the agency between assignments at least 50% of the pay you received on your last assignment or the national minimum wage rate for the hours you worked on the last assignment, if this is greater.

The agency must also try to find and offer suitable assignments to you when you are between assignments and not working. Your agency cannot terminate your contract until there has been a total of at least four calendar weeks between assignments when you were not working but were paid by the agency.

This exemption from equal treatment only applies to pay. You are entitled to all other equal treatment rights.

Holidays rights for agency workers

After 12 weeks in the same job for the same hirer, you will have the right to the same holiday entitlement as if you had been directly recruited by the hirer to do the job. This includes equal treatment on annual leave and holiday pay including entitlements above the statutory minimum and equal treatment on bank holidays including rights to time off and enhanced pay rates. For example, if comparable directly employed staff are entitled to 35 days holiday per year, your entitlement should be the same. If your assignment is for a shorter period such as six months your entitlement will be worked out on a pro-rata basis and you would be entitled to 17.5 days leave in this example.

Requesting and taking holiday : After qualifying for equal treatment you should be treated the same as the hirer's employees when requesting and being permitted to take holidays. For example, where a hirer requires their employees to give notice before being able to take leave, you can be required to give the same period of notice and where the hirer's employees are allowed to take holidays during peak times such as the summer season, you should be allowed to take holiday during this time as well.

Equal treatment on working time entitlements

After 12 weeks in the same job for the same hirer, you will have the right to the same working time entitlements as if you had been recruited directly by the hirer to do the same job. This includes equal treatment on: the length of working time; rest breaks and rest periods; night work including enhanced pay rates; pay during travel time during working hours; on call pay and standby payments.

Agency workers qualify for equal treatment on pay, holidays and working time after 12 weeks in the same role for the same hirer. After the 12 week qualifying period, you will have the right to pay, holiday and working time entitlements as if you had been directly recruited by the hirer to do the same job.

The key question is 'what pay, holidays and working time entitlements would I have been entitled to if I had been directly recruited by the hirer to do the same job?'

You will only have the right to equal treatment on pay and conditions ordinarily contained in the contracts of the hirers' employees or workers.

In most workplaces it will be easy to assess whether you are receiving equal treatment by comparing your pay and conditions with collective agreements, staff handbooks, pay scales or standard contracts of the hirers' employees or workers. But where a hirer employs staff on genuinely individualised pay rates, you may not be covered by equal treatment rights.

A hirer or agency may be able to defend a claim for unequal treatment if they can identify a comparable employee on the same pay and conditions as you. The comparator must be a current employee of the hirer and must do the same or similar work as you. They should also work in the same workplace as you, or in another workplace owned by the hirer if there are no comparable employees in your workplace.

Calculating the 12 week qualifying period

You will qualify for equal treatment on pay, holidays and working time entitlements after working for 12 calendar weeks in the same role for the same hirer on one or more assignments.

Every week in which you do any work for a hirer will count as a calendar week, even if you only work a few hours or a couple of days. A calendar week is likely to comprise of a period of 7 days, starting with the first day of your assignment.

It does not matter if you are supplied by more than one agency during your qualifying period and you can accrue qualifying periods with more than one hirer at the same time.

The 12 week qualifying period will be broken and reset to zero where:

• You start a substantively different role with the hirer and are informed in writing about the new role by your agency, or
• You have a break of more than 6 weeks from working for the hirer (unless the break is for a permitted reason that does not break continuity).

What is a substantively different role?

A role will be 'substantively different' where there is a genuine and significant difference to the role, involving different job functions or tasks; requiring use of different skills and / or a significantly different pay rate. It is not enough that your line manager has changed or you are working in a different department but doing essentially the same job for the same hirer.

Your agency must write to you informing you of the type of work you will be required to do in the new role.

Permitted breaks during or between assignments

If you have a break of more than 6 calendar weeks during or between assignments with the same hirer you will normally have to start a new 12-week qualifying period unless the reason for the break is a permitted one under the Regulations. It may help to think of the qualifying period as a 'stopwatch'; certain breaks during or between assignments will cause the stopwatch to 'pause'. It will then continue to tick if you return to the same role with the hirer.

Breaks which pause the stopwatch for the duration of the break include: any break of 6 calendar weeks or less; sickness absence; annual leave;jury service ; customary factory shut downs or summer vacationsand strikesor industrial action in the hirer's workplace.

Continuity is not broken and the stopwatch continues to 'tick' during: any period of sick leave for pregnancy-related reason;any leave for maternity related reasons for up to 26 weeks after childbirth andany period of contractual or statutory maternity, paternity or adoption leave.

The Agency Workers Regulations include provisions to discourage hirers and agencies from hiring you on a succession of assignments or from moving you around in order to prevent you from qualifying for equal treatment rights.

You will gain equal treatment rights where:

• you have been moved to more than two substantively different roles with the hirer (or within a company associated with the hirer) or you have been hired on a succession of more than 2 assignments with a hirer and
• the most likely reason for this was because the agency or hirer (or associated company) intended to prevent you from qualifying for equal treatment and
• you would have qualified for equal treatment if you had not been moved or hired on a succession of assignments.

Where an Employment Tribunal decides that a hirer or agency has breached these anti-avoidance provisions, they can award you up to £5,000.

The Agency Worker Regulations extend two existing rights for pregnant employees to agency workers once they have completed the 12 week qualifying period. These are:

The right to reasonable paid time off to attend ante-natal appointments when on assignments.

The right to be offered an alternative assignment for pregnancy related reasons or to be suspended on full pay where a suitable alternative assignment is not available.

(These rights apply from day one to agency workers who are employees of an agency.)

For more information on these rights please go to http://www.direct.gov.uk/en/Employment/

If you are not receiving your rights to equal treatment you may be able to take a claim to an Employment Tribunal. You should always seek advice from your union or the ACAS Helpline before making a claim to an Employment Tribunal.

As with most statutory rights there is a 3 month time limit for claims to an Employment Tribunal.

Where an Employment Tribunal finds that your rights under the Agency Worker Regulations have not been complied with they will make a declaration and award a minimum of two weeks' pay. Where you can show that the anti-avoidance measures have been breached the Tribunal will be able to award up to £5000 compensation in addition to any other compensation awarded.

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Home   >   Employment law   >   Agency Worker Employment Rights

Employment law

Temporary and agency workers' rights

If you're an agency worker, you've a number of important rights from day one and acquire even more after 12 weeks with the same company. Explore your rights now, as well as what to do if they aren't being respected.

Employment law solicitors

Slater and Gordon's experienced solicitors are here to advise you on all aspects of your rights as a temporary worker. Call us on 0330 041 5869 or contact us and we'll call you.

Talk to an employment law expert today

What are my rights as a temporary agency worker.

It's a sad fact of life that agency workers are seldom treated as well as permanent staff. Having said that, agency workers - also commonly referred to as temps or temporary workers - now have greater rights than ever before. In fact, even if you're a temporary worker, you have a number of important rights from the day you start a new engagement and acquire equivalent rights to permanent staff once you've worked in the same job for 12 weeks continuously. As an agency worker, you always have the right to:

• Be paid at least the minimum wage
• Not have unlawful deductions taken from your wages
• Not be discriminated against because of sex, age, gender reassignment, disability, marriage and civil partnership, pregnancy and maternity, race, religion or belief, or sexual orientation
• To enjoy statutory rest breaks
• To have access to employee areas including canteens
• To have a limit on the hours you work every week
• To enjoy unpaid parental leave if you qualify
• To ask for flexible working after parental leave
• To receive statutory sick pay, statutory maternity pay, statutory adoption pay and statutory paternity pay if you qualify
• To be kept safe at work
• To take certain claims to an employment tribunal

If you're working as an agency worker and believe that these rights are being infringed, you may wish to talk to one of our experienced employment law solicitors.

What is a pay between assignments contract?

In some cases, temporary or agency workers don't only get paid when they're on an assignment; you may be offered what's known as a pay between assignments contract. This can seem attractive, as it means that once an assignment has finished, the agency will continue to pay you until another assignment is available.

In effect, you become an employee of the agency, but with two main disadvantages, namely that:

• The actual figure for your pay between assignments will only be 50% of the pay you received for your most recent assignment, or the national minimum wage for the hours worked in that assignment; whichever is greater
• When you're on assignment, you'll acquire the same employment rights as other workers once you've completed 12 weeks in the same role – such as holiday accrual and working hours - but you won't automatically be entitled to receive the same pay

While you may be tempted by the thought of getting paid between actual assignments, there can be a significant trade-off between pay security and actual levels of pay once you've signed one of these contracts. It's also worth bearing in mind that the agency can choose to end your contract after as little as four weeks between working assignments, making the comfort of 'guaranteed income' far less comfortable than you might wish.

If you're considering signing a pay between assignments contract or have already signed one and feel that your rights are being infringed, talk to one of our experienced employment law solicitors. Call us on 0330 041 5869 or contact us and we'll call you.

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The agency workers regulations 2010, you are here:.

• UK Statutory Instruments
• 2010 No. 93
• Regulation 10
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Permanent contracts providing for pay between assignments

10. —(1) To the extent to which it relates to pay, regulation 5 does not have effect in relation to an agency worker who has a permanent contract of employment with a temporary work agency if—

(a) the contract of employment was entered into before the beginning of the first assignment under that contract and includes terms and conditions in writing relating to—

(i) the minimum scale or rate of remuneration or the method of calculating remuneration,

(ii) the location or locations where the agency worker may be expected to work,

(iii) the expected hours of work during any assignment,

(iv) the maximum number of hours of work that the agency worker may be required to work each week during any assignment,

(v) the minimum hours of work per week that may be offered to the agency worker during any assignment provided that it is a minimum of at least one hour, and

(vi) the nature of the work that the agency worker may expect to be offered including any relevant requirements relating to qualifications or experience;

(b) the contract of employment contains a statement that the effect of entering into it is that the employee does not, during the currency of the contract, have any entitlement to the rights conferred by regulation 5 insofar as they relate to pay;

(c) during any period under the contract in which the agency worker is not working temporarily for and under the supervision and direction of a hirer but is available to do so—

(i) the temporary work agency takes reasonable steps to seek suitable work for the agency worker,

(ii) if suitable work is available, the temporary work agency offers the agency worker to be proposed to a hirer who is offering such work, and

(iii) the temporary work agency pays the agency worker a minimum amount of remuneration in respect of that period (“the minimum amount”); and

(d) the temporary work agency does not terminate the contract of employment until it has complied with its obligations in sub-paragraph (c) for an aggregate of not less than four calendar weeks during the contract.

(2) For work to be suitable for the purposes of paragraph (1)(c) the nature of the work, and the terms and conditions applicable to the agency worker whilst performing the work, must not differ from the nature of the work and the terms and conditions included in the contract of employment under paragraph (1)(a).

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• Labour market reform

Agency workers: pay between assignments survey

Survey conducted in October 2014 looking at temporary agency workers and the use of pay between assignment contracts.

Ref: BIS/14/1257

This report summarises a survey of temporary agency workers in October 2014, all of whom were Recruitment Employment Confederation ( REC ) members.

The survey was undertaken in an attempt to better understand pay between assignment contracts among temporary agency workers. The report is intended to increase the research evidence base on pay for temporary agency workers.

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Agency worker rights

There are different types of staff, and you need to know about all of them.

First published on Thursday, Jun 04, 2020

Last updated on Friday, May 06, 2022

There are 865,000 agency workers (or temps) in the UK. This figure amounts to a 30% increase from 2011. The source for this is the Resolution Foundation 2016 .

The Agency Workers Regulations 2010 (some refer to this incorrectly as the “agency work regulations”) provide workers the right to equal treatment for basic employment and working conditions. That’s after 12 weeks.

You should also remember that you’ll classify them as workers, which is different to employees.

How to identify agency workers

These are individuals who work for you but have an employment agency contract—this means they’re an agency worker.

The following also indicates that someone’s employment status:

• They’re provided by an agency to work with you on a temporary basis.
• You manage their work.
• They’re not self-employed.

When is someone not an agency worker?

There are a specific set of reasons:

• Have found work through an agency but are self-employed.
• Are on a managed service contract where the agency supplies a service (like cleaning) to you and manages the worker.
• Work for an in-house temporary staffing bank, where you employ temporary workers directly and they only work for you.
• Have found direct employment with you through an agency or by themselves.
• Are on loan to you from another business.

The rights of an agency worker

First off, do agency workers have rights? Of course. Employment agencies responsibilities towards them include:

• Finding work for free, but the agency can charge for services like CV writing.
• Providing written terms of employment.
• Making available relevant details (e.g. the start date) with a job offer.
• Communicating changes to terms and conditions.

But do agency works have rights from their first day of work? Yes. These are as follows:

• The use of shared areas and facilities.
• Information about job vacancies, but this doesn’t mean they’ll be suitable to apply for them.

And what about agency worker rights after 12 weeks? Once they’ve cleared that period, they can claim equal treatment with employees. This includes considerations on agency workers’ pay rights:

• The same pay as your permanent employees doing the same job.
• Paid annual leave.
• Time off with pay for ante-natal appointments.
• Bonuses of commission directly attributed to performance.

Holiday entitlement for agency staff

They’re able to take the minimum statutory 5.6 weeks of holiday (with pay).

After passing their 12-week qualifying period, they can claim pay and any other extra leave your business offers over the 5.6 weeks.

You can add this to the agency worker’s holiday entitlement, add it to their hourly-daily rate, or pay it at the end of their working period with you.

However, remember that any agency workers with a pay between assignments contract doesn’t have the right to claim the same holiday pay.

Maximum weekly hours for agency workers

After agency workers join you, they’re not obligated to work more than an average of 48 hours per week, under The Working Time Regulations 1998 .

They can sign an agreement with their agency to waive this right. You can’t insist that they work longer shifts than comparable employees.

Sunday working for agency workers

They have to work on Sundays if it’s in their contract. You can’t make them work on a Sunday unless they’ve agreed to this in writing.

How to calculate agency workers 12-week qualifying period

You should start counting this period from their first day of work. The following will pause the clock of the 12-week period:

• A break of six weeks or less.
• Sick leave for up to 28 weeks.
• Annual leave.
• Jury service for up to 28 weeks.
• A planned shutdown (e.g. closedown for Christmas) or industrial action.

Exceptions to equal treatment

If agency workers have signed a pay between assignments contract with their agency, they’ll be receive pay even when not in work.

As a result, they can’t claim equal pay, but their other rights will remain the same.

The Employment Appeal Tribunal case, Coles v Ministry of Defence (2015) found that agency workers are do have entitlement to access information about job vacancies. But permanent employees should receive special treatment to fill these positions.

It’s critical to be clear about the start and end of the 12 week qualifying period for them. This information should be available at your fingertips in a safe place.

The BrightHR Employee Hub stores your employee and worker records securely, with ease of access via our cloud-based HR software . 

You’ll also get notifications of important dates including alerts about the 12-week period.

Need our help?

If you have agency workers and need help with your HR activities regarding them, get in touch and we’ll give you a helping hand: 0800 783 2806 .

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