Agency worker or employee?
Agency staff are generally classed as 'workers' rather than as employees and have the benefit of legal protection under the Agency Workers Regulations 2010 (see further below).
- paid annual leave
- rest breaks and limits on working time
- the National Minimum Wage
- no unlawful deductions from wages
- discrimination rights under the Equality Act 2010
- certain maternity or paternity rights, and
- health and safety at work.
- find work through an agency but work for yourself - you may be self-employed (see below)
- use an agency to find permanent or fixed-term employment – you should check the position with the company that hired you
- take a ‘pay between assignments’ contract - you’re an employee of the agency.
However, employment status is not always clear; in different circumstances you may be an 'employee' of either the agency or the hirer and therefore not an ‘agency worker’ in employment law. Alternatively, as an agency worker you may be classed as an employee during specific assignments, but the gaps between may break any continuity of employment. This would disqualify you from certain statutory employment rights, including rights around unfair dismissal.
Employment status is a matter for the employment tribunal to decide. They will usually consider written documentation as well as evaluating the factual circumstances in which the work was performed. The employment tribunal has sole responsibility for determining and evaluating all the relevant evidence. The title 'employee' or 'self-employed' is not conclusive but could help establish the intentions of the parties.
If you’re unsure of your employment status, check your contract. HM Revenue and Customs (HMRC) Employment Status Indicator (ESI) tool can also be useful for checking worker status. If you have further questions, please call us.