Agency workers entitled to equal treatment after 12 weeks

Basic terms and conditions

After 12 weeks in the same job with the same hirer, you will be entitled to the same basic terms and conditions as if you had been recruited directly.

These basic terms and conditions include:

• basic pay including holiday pay and overtime and bonuses linked to your performance
• duration of working time including not being expected to work more hours a week than those who are directly recruited
• annual leave
• where this is above your legal entitlement you may receive an additional payment as part of the hourly rate or at the end of the assignment
• this is instead of the additional leave 
• night work
• rest breaks and rest periods
• paid time off for antenatal appointments

However if your agency offers you a permanent contract and pays you between assignments (sometimes called Swedish derogation) and you agree to this, this will mean you will not be entitled to equal treatment on pay.

• Agency workers: pay between assignments

Working out your qualifying period

Depending on the circumstances, breaks between assignments can either count towards the qualifying period or cause the qualifying period clock to pause or reset.

Your temporary work agency (often just called an agency) may ask you for information about previous assignments to help decide when, or if, you are entitled to equal treatment.

There is no legal obligation to make you share this information. However, doing so will help to make sure you receive equal treatment at the right time. It might also affect any claim you make for equal treatment, as an Industrial Tribunal could take this into account when deciding on compensation.

The qualifying period may start again at zero if:

• you move to a new assignment with a new hirer where you stay with the same hirer but you are no longer in the same role – you are doing a 'substantively different' role
• there is a break between assignments with the same hirer of more than six calendar weeks

The reasons why the qualifying period pauses include:

• a break for any reason that is no more than six calendar weeks and you return to the same role at the same hirer
• a break of up to 28 weeks because you are incapable of work because of sickness or injury
• any break where you take your leave entitlements such as annual leave
• a break which is due to the workplace closing such as a Christmas shutdown
• a break caused by a strike or other industrial action at the workplace
• a break due to attending jury service up to 28 weeks

Breaks that still count towards your qualifying period include:

• pregnancy/childbirth or maternity breaks which take place during pregnancy and up to 26 weeks after childbirth
• any breaks due to taking maternity leave adoption leave or paternity leave

When the break counts towards your qualifying period, it will be for the intended or likely length of the assignment - whichever is longer.

If you work for more than one hirer, you will be eligible for equal treatment after 12 weeks in each hirer. That may mean you receive different terms and conditions after 12 weeks when on different assignments.

Doing a 'substantively different' role

If your job with the same hirer changes a lot, meaning that you are doing different work, it could mean that the role is substantively different. If this is the case, the qualifying period would start again.

A 'substantive' change in a role requires duties which make up the whole or main part of your role to be different. It is not enough that only your line manager has changed or you have changed locations. There has to be a genuine and real difference to the role.

A combination of some of the following characteristics should be in place to make the role substantively different:

• different skills and competences used
• pay rate different
• work in different location
• line manager different
• working hours different
• role requires additional or new training
• different equipment involved

For the qualifying period to be reset to zero, your agency must tell you in writing that the role has substantively changed, and the qualifying period will start again.

Example

You have worked in a warehouse on a production line to put together a product. Simply moving you from a production line to a packing role requires little training and uses the majority of the same skills. It is unlikely to be substantively different.

However, if you have worked on the production line and then move into an administrative role, then this is likely to be substantively different, and the qualifying period starts again.

Where to find out if you are getting equal treatment

After the 12-week qualifying period, you will be entitled to be treated as if you had been directly recruited or employed by the hirer in the same job.

The terms and conditions for someone directly recruited are usually set out in:

• standard contracts
• a written statement of employment details
• pay scales
• collective agreements which are agreements negotiated between the hirer and a trade union
• company handbooks or similar including those found on intranets or staff notice boards

How to make sure you get equal treatment

There are measures to prevent the structure of assignments intentionally stopping you getting equal treatment.

In all circumstances you must either have completed:

• at least two assignments
• two roles with the same hirer or connected hirers 

Factors that would show that assignments were structured to prevent you getting equal treatment could be:

• the number of assignments
• the length of assignments
• the number of role changes
• whether the roles were substantively different
• the length of break periods

What is included in pay

Once the 12-week qualifying period has been reached, the following are included in pay:

• basic pay based on the annual salary you would have received if you had been recruited directly (usually converted into hourly or daily rate and taking into account any pay increments you would have received)
• overtime payments – depending on any requirements about the number of hours you would need to have worked if you had been recruited directly
• payment for annual leave
• bonus or commission payments linked to the amount and quality of work you do
• bonuses linked to personal performance or non-contractual payments that are made with such regularity that they are a matter of custom and practice
• vouchers or stamps which have a monetary value and capable of being exchanged for money or goods or services
• this could include luncheon vouchers or child care vouchers but not salary sacrifice schemes
• paid time off for antenatal appointments
• automatic pension enrolment

What is excluded from pay

The following are excluded from pay:

• occupational schemes
• this can include sick pay or maternity or paternity and adoption pay
• you may be entitled legally to payments and should check with your agency
• redundancy and notice pay
• payment for time off to carry out trade union duties
• guarantee payments, as they apply to directly recruited staff if laid off
• advances in pay, for example, for season tickets
• payments or rewards linked to financial participation schemes such as share ownership
• majority of benefits in kind
• this can include such reduced-rate mortgages
•  employer-funded training allowances
• can exclude those which have monetary value as referred to in the pay includes list above
• bonuses not linked directly to the contribution of the individual
• these can include flat rate bonuses paid to workforce to encourage loyalty or reward long service or based on the hirers overall performance and there is no recognition of your personal contribution
• additional non-contractual bonuses as long as these payments are not made with such regularity that they have become custom and practice

If you have a contract of employment with the agency, you will be eligible for some of the above payments from the agency and not the hirer. You should check what kind of contract you have with the agency.

Working time entitlements

As well as equal treatment on key aspects of pay, you are also entitled to equal treatment after 12 weeks in the same job about:

• working time
• night work
• rest periods and rest breaks
• annual leave (where this is above the legal entitlement of 5.6 weeks)

Payment of legal leave should be made when you take the leave. Where your leave entitlement is above the legal minimum, the additional leave might be included as a one-off payment at the end of the assignment or a part of the hourly/daily rate. It should be clear on your payslip that you have received the right entitlement.

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.

• Introduction to trade unions