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What Rights do your Agency Workers actually have?

As most employers are aware, staff working on their premises through an Agency are far from typical employees. Yet, following the controversial Employment Appeal Tribunal (EAT) decision in Angard Staffing Solutions Ltd & Anor v Kocur & Anor (Angard Staffing), it now appears that agency workers’ rights are even further away from those of employee that one might have thought.

Agency worker’s rights (the most basic ones) exist from day one of an assignment. They remain unchanged, and they are: protection against discrimination; National Minimum Wage entitlement and a minimum of 5.6 weeks’ holiday entitlement. Additionally, agency workers also always have the same right as direct employees of the hiring organisation to use any shared facilities and services.

However, it is in respect of rights which are only granted after 12 weeks of working on the same assignment at the same hiring organisation, that the EAT mostly looked at.

The law gives agency workers the right to be informed by the hirer of any relevant vacant post. Until the EAT latest decision in Angard Staffing, many believed (myself included) that this was in place to give agency workers the same opportunity as a comparable worker to find permanent employment with the hirer. However, the EAT held that this provision does not mean that agency workers have a right to be entitled to apply for and be considered for internal vacancies on the same terms as directly-recruited employees. Rather, they must simply be given the same level of information about the vacancies.

Additionally, in Angard Staffing the EAT gave further details on how to interpret Regulation 5 which entitles agency workers to the same basic working and employment conditions as they would be entitled to have they been directly-recruited by the hirer. The EAT made clear that “same working conditions” does not mean agency worker’s contractual hours cannot be legally longer or shorter than comparable directly-recruited staff. Moreover, the EAT held that agency workers are not entitled to the same level of training, same scheduling of rest breaks and that employers can afford direct employees first refusal of overtime.

This decision –  albeit unfortunately making many agency workers rather unhappy – makes good sense as it allows more flexibility to employers which is of course one of the main reasons for contracting with Agencies in the first place.

If your business would be helped by sound boarding any of the issues raised here or any HR or employment law concern that you might have, don’t hesitate to reach out to us for a free consultation with one of our expert legal team on legal@lexleyton.co.uk

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