Your Rights as an Agency Worker As an agency worker, you have two sets of rights: –Rights that begin on day 1 –Rights that begin at week 12
But First…Are You an Agency “Worker” or “Employee”? These guidelines are probably intentionally ambiguous and, in any case, you are most likely to be a “worker”, which means you have less rights. The important phrase you're looking for in your contract is... “contract for services” = worker “contract of employment” = employee
If you have a “contract of employment” (meaning you're an “employee”), you have extra rights: - The right to claim unfair dismissal if you are sacked without notice or good cause - Redundancy pay - May have access to a grievance procedure NOTE: even some of these may have qualifying periods
Rights That Begin on Day 1 Just because you're entitled to them, doesn't mean you'll get them. Ask your agency if you're unsure. If that fails speak to a CAB, union representative, or relevant organisation. Number 1: To Get Paid An agency cannot refuse to pay you because they haven't been paid or because you cannot produce a signed time sheet. It is the agency's responsibility to establish hours worked.
Day 1 Rights (cont.) Whether this is a “contract for services” or a “contract of employment” How much notice you are required to give and entitled to receive in order to end the contract The rate of pay or the minimum rate of pay that the agency reasonably expects to achieve for you. This must be at least the hourly minimum wage. Whether you will be paid weekly or monthly The amount of paid leave that will be given Number 2: A Contract You must be given a written statement of terms and conditions. Changes must be agreed and must be confirmed in writing. The contract must contain the following information:
Day 1 Rights (cont.) Number 3: Holiday Pay As per a recent EU directive, agency workers are entitled to 5.6 weeks paid leave, just the same as any other employee. Some agencies have been getting round this by saying that your hourly rate includes holiday pay and that they therefore do not have to give extra pay if you take a break. At the very least, your contract must clearly state that your pay includes a sum for holiday pay and what amount of your pay is holiday pay.
Day 1 Rights (cont.) Number 4: A Fair Working Week Many times an employee will be given a 48 hour working week “opt out” form, signifying that you are willing to work beyond 48 hours a week. Often, the opt out sheet is slipped into the documents you are given to sign when you start a job. Your are not required to sign it; An employer cannot make you opt out as a condition of employment. However, even if you've already opted out, you can simply write a letter to your employer requesting to “opt back in.”
Day 1 Rights (cont.) From the TUC: “You have the right not to work more than 48 hours a week on average. This limit is averaged over a 17-week period. This means that it is legal to work more than 48 hours in some weeks, so long as this is balanced out by weeks in which fewer hours are worked, making an average of not more than 48 hours over the whole 17 weeks. You can sign away this right, but cannot be pressured to opt out, and can opt back in again at any time though you may have to wait for up to three months to gain protection.”
Day 1 Rights (cont.) Number 5: To be made aware of and apply for any vacant relevant internal job posts. Number 6: To join a union. You are allowed to join a union. You do not have to tell your employer if you are a member. You cannot legally be discriminated against for being a union member (although in practice…).
Rights That Begin on Day 12 The Law: After a qualifying period of “12 continuous calendar weeks…Basic working and employment conditions for temporary agency workers are no less favourable than if they had been recruited by the hirer.” NOTE: Term and mid-term breaks don't reset your 12 week qualifying period, nor does workplace closings such as a Christmas breaks, industrial action (strikes), and maternity/paternity/pregnancy/adoption leave.
Day 12 Rights (cont.) Most importantly, here's what you still don't get after 12 weeks: The ability to claim unfair dismissal Minimum notice Redundancy pay Access to the hirer's disciplinary and grievance procedures (it appears)
Day 12 Rights (cont.) Here’s what you do get: “Equal treatment” in terms of conditions and pay, including bank and public holidays. (Note: this is complicated as bank/public holidays are usually already included in your 5.6 weeks of holiday entitlement.) Time off for antenatal appointments
Day 12 Rights (cont.) The cost of providing equal treatment falls to the employment agency, not the hirer (although the agency may well try to pass the cost onto the hirer). Where to find out if you're getting equal treatment: permanent employees' contracts pay scales collective/union agreements on site union reps (especially helpful for matters of “customs and practices”) staff handbook
Sample Letter to Your Agency Dear [agency], As a result of the new agency worker regulations which came into effect in October 2011, I have a number of questions regarding my employment: 1) Can I be provided with a written statement of terms and conditions regarding my current placement? What is my hourly pay? 2) What is my annual leave entitlement? How is it calculated and how do I claim it? If it's included in my regular pay, what is the precise breakdown between holiday and standard wages? 3) Do I have access to a grievance and disciplinary procedure either through [agency] or through [hirer]? If so, how do I access it? 4) As I have been employed for 12 weeks, can I be provided with a statement detailing how this will affect my current conditions of employment? In terms of pay, for example, what is the procedure for ensuring I receive comparable remuneration compared to directly employed staff in my same job role? Thanks you for your time and I look forward to hearing back from you within two weeks' time, [Name and date]
…If We Stand Together As an agency worker, you’re entitled to join a union. Do so and get active! See if your branch has a dedicated agency worker rep. If not, make it you! Be the person who makes sure agency workers know their rights and get everything they’re entitled. Link up with permanent staff. Despite having different employers, we all work in the same workplace and need to stand together.
…If We Stand Together However... Unions are far from perfect. Many branches are still dominated by the concerns of full-time directly employed staff. You're going to have to make your collective voice as agency workers heard in the workplace and in the union. Find out who the other agency workers are in your workplace as well as linking up with others employed by your agency in other workplaces. Get organised!
Office Angels: A Case Study Winter 2010/2011: Dan works for Office Angel employment agency for 3 days. Despite being told not to worry about his lack of a timesheet, he was only paid for one day. Phone calls, letters, and meetings don't resolve the situation...
Office Angels (cont.) Spring/Summer 2011: Dan contacts an outside organisation (not a union) which specialises in offering solidarity in cases of “wage theft”. The campaign begins by delivering a “demand letter” to the Office Angels branch where Dan had been employed.
Office Angels (cont.) When there was no response to the letter, a picket was organised outside the branch. When management still didn't respond, 2 things happened: A one day “communications blockade” where sympathetic individuals called and e-mailed Office Angels requesting Dan be paid A week of pickets at Office Angels locations around London
Office Angels (cont.) At this point Office Angels made contact with Dan, but were still unwilling to pay him all that he was due. So... A national week of pickets against Office Angels, including another day of blockading communications, was organised. A call went out for an international week of action against Office Angels should the national week of action not succeed. Many organisations around the world fight against precarity and casualisation and were keen to get involved by targeting Office Angel's parent company, ADECCO, the largest employment agency in the world.
Office Angels (cont.) In the first four days of the national week of action, 15 pickets took place around the UK! After bringing in their national director of HR to condemn the campaign, by day four the pickets succeeded. Office Angels caved and gave Dan his rightful pay.
Further Information www.unison.co.uk http://www.worksmart.org.uk/ http://www.lrd.org.uk/ http://www.tuc.org.uk/tuc/agencyworkers.pdf