Agency Workers – Legal Understanding

iStock_000015272290XLargeThe Agency Workers (Amendment) Regulations 2011 implemented in October 2011 give agency workers the entitlement to the same basic employment and working conditions as if they had been recruited directly.

They are not an employee of the user company and may or may not be an employee of the agency.

The user company pays the agency for its services and the agency is responsible for paying the individual. If the individual is an employee of the agency, the agency will also be responsible for paying their holiday pay and sick pay.

The contractual position of agency workers has consistently caused legal problems and some uncertainty. In a typical “triangular” relationship, the agency engages the services of an individual to work for another (the user company/client). In these circumstances, individuals may have a contract with the agency but not with the user company with whom they are placed; alternatively, they may be contracted to the client to whom they have been introduced by the agency.

In addition, there will usually be two types of engagement: the worker’s “general” engagement with the agency, under which they perform sporadic tasks at the agency’s request for one of the agency’s clients; and specific engagements, which begin or end with the performance of any one of these tasks. Each engagement is capable, according to its context, of giving rise to a contract of employment. Contractual status may be judged separately in the two contexts.

To illustrate the importance of this, it is useful to consider an example. An organisation with a warehouse may well need temporary cover for warehouse operatives. It is also likely that the risk assessment within the warehouse requires protective footwear to control the risk of foot injury. If the temporary operative is the employee of an agency, then the agency is responsible for providing the operative with protective footwear free of charge. Alternatively, if the client organisation can be considered as the employer, they will be responsible for the provision of protective footwear – even for the short duration of the temporary operative’s work there. One particular way around this is to ensure that it is made a contractual condition with the agency that any operatives sent will arrive with the correct personal protective equipment for the risks as notified by the client. This clause may of course be subject to some negotiation where specialist equipment is necessary – but the key is the contract with the agency.

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