Guidance for Agency Workers during Coronavirus

Posted on 10th July 2020

Temporary and agency workers might find that they’ve struggled for work during the coronavirus pandemic. Stricken industries and beleaguered businesses have been forced to cut hours and cut staff amid the crisis. This is certainly the case for many of the sectors that regularly employ temporary and agency staff.

There is legal guidance and rights out there, however, if you are an agency worker affected by the coronavirus crisis. We take a look at what you might expect in the current employment climate.

The Government is constantly updating its guidance, so you must up to date with the latest updates. This note gives general guidance and an overview only. It is not legal advice.

What is an Agency Worker?

An agency worker is someone who signs up with an employment business or agency and works for one of their clients.

You’re an agency worker if an agency employs you or if you provide services as a self-employed contractor through a limited company.

How are agency workers contracted?

An agency worker will normally have a contract with the employment agency, not the client organisation.

A temporary or casual worker may also be an agency worker if they provide their work through an agency. Or, they could be contracted directly by an organisation in a flexible, often ad hoc way.

Agency workers employment rights

Agency workers’ rights will vary depending on the specific arrangement. Essentially there are two sources of rights:

  1. Rights based on employment status.
  2. Rights coming from legislation dealing specifically with agency workers.

Rights based on status

The legal tests to determine your employment status are not straightforward. How your contractual arrangements work in practice, not just in theory, is essential to determining your employment status as an agency worker.

Agency workers may also be self-employed, which is a different status without any of the below statutory rights.

Statutory right (main rights, not an exhaustive list,
and some have additional eligibility conditions)
EmployeeWorker
Written particulars of employmentYesYes (from 6 April 2020)
Itemised pay statementYesYes (from 6 April 2020)
Statutory sick payYesMaybe (only those who are ‘employed earners’
for National Insurance purposes)
Statutory maternity, paternity, adoption or shared parental pay (not leave)YesMaybe (only those who are ‘employed earners’
for National Insurance purposes)
National minimum wageYesYes
Paid annual leaveYesYes
Right to pension contribution from employer under the auto-enrolment schemeYesYes
Protection from unlawful deduction of wagesYesYes
Protection from discriminationYesYes
Unfair dismissalYesYes
Statutory minimum noticeYesYes
Statutory redundancy payYesYes
Certain payments on insolvencyYesYes

Agency Workers Regulations 2010

The 2010 Regulation covers two sets of workers’ rights.

  • Day One  rights. Allows agency workers access to facilities and information about vacancies from the start of their contract.
  • 12-week rights. Gives agency workers the same pay and other basic working conditions as permanent staff after a 12-week qualifying period.

The regulations also state that any dismissal of an agency worker should be considered unfair if:

  • The agency worker brings a claim under the regulations.
  • The agency worker alleges that an agency or hirer has breached the regulations.

You do not need to meet the qualifying condition of two years’ service to claim unfair dismissal.

Can agency workers be furloughed?

Agency workers can be furloughed, if they were paid through PAYE on or before 19 March 2020. This also applies to those agency staff employed by umbrella companies.

Agency workers who are not paid through PAYE will not be eligible for furlough.

Find out more information on the furloughs in our FAQs on the Government’s Coronavirus Job Retention Scheme .

Government guidance for furloughing agency workers

Government guidance states that the individual must be on PAYE payroll on or before 19 March 2020 to be eligible for furlough.

The guidance does not state that an agency worker must have been working on an assignment on any particular date.

The agency and the agency worker must agree whether the agency worker should be furloughed. It is not for the client/end user organisation to furlough the agency worker as they won’t be on their payroll.

The government’s guidance suggests that the agency should discuss furlough with any end clients involved.

You must not perform any work for, through, or on behalf of the agency or their clients while on furlough.

However, you may sign up with another agency, or take on other work, if your contract allows.

Why aren’t agency workers being furloughed?

The main reasons why agencies may be refusing to place its agency workers on furlough leave are:

  • It is easier to stop offering agency workers work or to terminate their contract.
  • The variable hours and rates of agency work make calculating average/normal pay challenging.
  • Many agencies fear that they will not be able to recover the wages they have paid their agency workers through the scheme due to the nature of the agency workers’ pay.
  • Holiday entitlement can be accrued by agency workers on furlough and some employers may worry that this creates an extra unnecessary risk for them.

Can a client terminate agency staff arrangements?

Whether a client can terminate agency arrangements depends on whether you are employed within the private or public sector.

Private sector

Private employers may terminate agency arrangements subject to the contract between them and the agency. Such contracts often allow for immediate termination of assignments without notice.

Public or part publicly funded sector

Public sector companies should pay agency staff until their arrangement ends. However, there is no need to continue the assignment beyond the original conclusion date.

What rights or support do self-employed agency workers have?

Many agency workers are on self-employed contracts with their agency. If this is the case it is always worth considering whether this is self-employment. If not, it is an employment arrangement, in which case the above rights will apply.

Usually, if you are self-employed you will not be paid through the agency’s PAYE and so will not be eligible for furlough.

You are also likely to be on a contract which permits immediate termination without notice or compensation. This gives the agency or client the ability to not offer work or assignments (in which case they won’t be paid).

In this case, you should consider grants through the Self-Employment Income Support Scheme.

The Government has announced a second self-employment grant will be available to individuals in August 2020. This provides 70% of your monthly profits capped at £6,570 in total.

Find out more about the government’s Self Employment Income Support Scheme in our explainer.

Assistance may also be obtained through universal credit, employment and support allowance and potentially other benefits (subject to meeting the eligibility criteria).

Help may also be available in the form of mortgage holidays, if applicable.

What are my rights as agency workers if my contract is terminated because of Coronavirus?

There are no specific rules for dismissing an agency worker. The same rules that apply to dismissing workers and employees apply to agency workers, depending on their status. You should always check your contract for specific information

Unfortunately, only agency workers who are employees, will have statutory unfair dismissal rights and statutory notice rights. Ordinary unfair dismissal rights only accrue after two years’ continuous service with the same agency.

If work dries up, only agency workers who are employees, and have more than two years’ continuous service with the same agency, will be entitled to receive statutory redundancy pay.

You can find out more information about your rights and how the coronavirus pandemic may affect your employment on our blog page.

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