Agency worker equal pay after 12 weeks

Agency Workers and Equal Pay After 12 Weeks:

The short answer is yes, but with important detail around what "the same pay" actually covers.

The governing law is the Agency Workers Regulations 2010 (AWR), which implemented the EU Temporary Agency Workers Directive into the law of England and Wales (and the UK more broadly). These regulations survived Brexit and remain in force.

The 12-week qualifying period:

After 12 calendar weeks in the same role with the same hirer, an agency worker becomes entitled to the same basic working and employment conditions as they would have received had they been recruited directly by the hirer to do the same job. This is often called "day one rights plus week 12 rights," because some entitlements apply from day one and others only kick in after the qualifying period.

What is covered after 12 weeks:

The entitlement to equal treatment specifically covers what the regulations call "relevant terms and conditions." These include:

1. Pay, including basic pay, overtime rates, shift allowances, and unsocial hours payments.
2. The duration of working time, rest periods, and night work.
3. Annual leave entitlement (beyond the statutory minimum, which is a day one right).

Pay is defined broadly under regulation 6 and includes bonuses directly attributable to the individual's work, vouchers or stamps with a monetary value (such as luncheon vouchers), and commission.

What is not covered:

Certain benefits are specifically excluded from the equal treatment principle. These include:

1. Occupational sick pay beyond the statutory minimum.
2. Occupational pensions.
3. Redundancy pay.
4. Maternity, paternity, or adoption pay beyond statutory entitlements.
5. Payment for time off for trade union duties.
6. Contractual notice pay.

How the qualifying period works:

The 12 weeks must be spent working in the same role with the same hirer. The clock does not reset simply because the worker takes a break, but there are detailed rules about when a break does or does not reset the clock. For example, a break of up to six weeks for any reason will pause but not reset the clock. A break due to sickness or injury of up to 28 weeks will also pause rather than reset. A break caused by the hirer deliberately structuring assignments to prevent the worker reaching 12 weeks can be challenged as an anti-avoidance arrangement.

The comparator:

The agency worker's entitlement is benchmarked against what a comparable direct recruit of the hirer would receive, not what existing permanent staff happen to earn. The test is hypothetical: if the hirer had recruited someone directly into the same role at the same time, what terms would they have offered? In practice, this often amounts to the same thing as comparing with permanent staff, but the legal test is slightly different and worth understanding.

The Swedish Derogation (now abolished):

Before 6 April 2020, agencies could avoid the pay element of equal treatment by offering the worker a permanent contract of employment with the agency itself, with pay between assignments. This was known as a Swedish Derogation contract or a pay between assignments contract. This was abolished by the Agency Workers (Amendment) Regulations 2019, so it is no longer available as a route to avoid equal pay obligations.

Practical considerations:

If you believe you are an agency worker who has completed 12 weeks in the same role and you are being paid less than direct recruits would be, your practical steps would typically be:

1. Gather evidence of your start date, the role you are performing, and your current pay and terms.
2. Make a written request to the agency under regulation 16 for information about the relevant terms and conditions that apply to comparable direct recruits of the hirer. The agency and the hirer each have obligations to provide this.
3. Raise the issue informally with the agency first, since many agencies will correct an underpayment once it is drawn to their attention.
4. If the matter is not resolved, you can bring a claim to the employment tribunal. The claim would typically be against the agency (which is responsible for pay), but in some cases the hirer can also be liable, particularly if they failed to provide accurate information about comparable terms.

Time limit:

A tribunal claim must generally be brought within three months less one day of the date of the treatment complained of, subject to ACAS early conciliation extending that deadline. If the underpayment is ongoing, each pay period can give rise to a fresh claim, but it is still important not to delay.

If there are specific facts you would like me to consider, such as the type of role, the length of the assignment, or any complications around breaks in the assignment, I am happy to look at those in more detail.