Q: My business is currently using a number of agency temps to cover annual leave in the summer. What are their legal rights?
A: During periods of high employee absence or when seasonable demand picks up, employers may decide to use agency workers to plug their staffing gaps.
It is important that employers understand the various rights afforded to agency workers because, in addition to day one statutory rights including discrimination protection, specific rights come into force once the agency worker has been assigned to the same hiring business in the same role for a 12-week qualifying period.
From day one, agency workers must be paid at least the national minimum wage or national living wage that applies to their age. Once they reach 12 weeks’ service, they will be entitled to receive the same pay as comparable staff that are directly employed by the hiring business, unless they are employed by the employment agency on a pay-between-assignments contract. Interestingly, this does not include company sick pay, even if this is offered to direct employees.
Agency workers are initially entitled to the minimum statutory entitlement of 5.6 weeks’ paid annual leave each year. Again, once the agency worker passes the 12-week qualifying period they have the right to receive the same amount of holiday leave and pay as comparable full-time employees.
Any additional holidays they are owed as a result can be given to the agency worker by an addition to their holiday entitlement, or settled by payment that is clearly detailed on their payslips.
Initially, agency workers are entitled to standard working pattern and rest period rights. This includes a continuous 20-minute rest break if they work more than six hours and a maximum average working week of 48 hours subject to the opt-out. Any additional rest breaks or differing working patterns offered to full-time employees must be given to agency workers at the 12-week qualifying period, including giving them additional break periods or longer lunches.
Depending on their employment status, agency workers will be entitled to parental rights in a similar fashion to other workers or employees. This includes protection against pregnancy discrimination, paid time off work to attend antenatal appointments after 12 weeks in the engagement, and statutory payments where they meet the eligibility criteria.
Business owners must also consider the health and safety risks that are posed to pregnant agency workers and consider suitable alternative work if risks cannot reasonably be removed.
From the start of their assignment with the business, temporary workers are entitled to have the same access to any collective facilities or amenities that are provided to direct employees, such as canteen facilities for staff and workplace childcare services.
They must also be provided with information about direct vacancies with the business in the same manner as other employees.
Peter Done is group managing director at Peninsula
