Rights under the Agency Workers Regulations 2010





Temporary agency workers have extra rights under the Agency Workers Regulations 2010 (AWR 2010). These rights are based on the principle of equality of treatment with comparable direct employees of the hirer and are intended to implement European Union law — the Agency Workers Directive.
They divide into rights available from Day 1 of an assignment and rights available after 12 weeks in the same role with the same hirer.





Day 1 rights



From Day 1 of an assignment, agency workers have the right:


• to equal access to collective facilities provided by the hirer, for example, canteens, waiting rooms, vending machines, toilet facilities, crèches, transport services (for example, local pick up and drop off services), car parking, mother and baby rooms, prayer rooms, rest facilities, accommodation for workers who have to sleep on site; and





• to be informed by the hirer of relevant vacant posts with the hirer (however, note the limits on this right, following the ruling in Coles v Ministry of Defence [2015] UKEAT/0403/14/RN, summarised on page 56). 





12-week rights 





After 12 weeks on an assignment in the same role with the same hirer, agency workers are entitled to:




• equal treatment on pay, holidays and working time; and





• improved pregnancy rights (see below).





“Pay” includes basic pay, holiday pay, unsocial hours payments (including enhanced pay for working on bank holidays), overtime pay, bonuses based on individual performance, including sales commissions and performance-related pay, some discretionary bonuses and vouchers (such as luncheon vouchers or childcare vouchers).





Pay does not include contractual sick pay, occupational pensions, maternity, paternity or adoption pay, bonuses unconnected to individual performance that reward loyalty or length of service, redundancy pay, advances in pay or loans, expenses, payments linked to financial participation schemes (for example, share ownership schemes) and benefits in kind.



“Working time” includes expecting an agency worker to sign the 48-hour opt out (see Chapter 4), night work, shift arrangements and rest breaks.





“Holidays” includes contractual holiday entitlement, arrangements for booking and taking holidays, arrangements for public holidays and any agreed arrangements for retaking holidays interrupted because of sickness. 



The AWRs provide a floor rather than a ceiling of rights to agency workers. There is nothing to stop employers offering better terms to agency workers than to comparable direct employees (Kocur v Angard Staffing Solutions Limited [2018] UKEAT 0181/17/2302). 


A hirer or agency has a defence to a claim for equal treatment if they can identify just one comparable direct employee with similar qualifications and experience who is employed at the same time as the agency worker and who has the same pay and conditions.



The law does not allow the hirer or agency to justify unequal treatment by pointing to the overall value of the agency worker’s package. Instead, a term-by-term approach must be taken, comparing each term to an equivalent term in the contract of the directly employed comparator. In other words, employers are not allowed to buy out rights under the AWRs by offering a premium rate of pay: