I am employed by my agency. Am I entitled to the new equal treatment rights on pay, holidays and working time?

If you are an employee of an agency, and have a right to be paid between assignments where the agency is unable to find work for you, you will not be entitled to equal pay, even where you have worked for more than 12 weeks in the same role for the same hirer.

In order for this exemption to apply, you must:

  • have a contract of employment with the agency;
  • not be employed on a fixed-term contract;
  • have a contract which includes terms on the following: the minimum pay rates you will receive; the location(s) where you will be expected to work; your expected hours of work during any assignment; the maximum hours you will be expected to work on an assignment; the minimum hours the agency will guarantee you while on assignment (which must be at least one hour); and the type of work you will be expected to undertake; and
  • be paid by the agency between assignments. (This must be at least 50% of the pay you received on your last assignment or the National Minimum Wage (NMW) rate for the hours you worked on the last assignment, whichever is the greater.)

The agency must try to find and offer suitable assignments to you when you are between assignments and not working. Your contract cannot be terminated until there has been an aggregate of at least four calendar weeks between assignments when you were not working but were paid by the agency.

This exemption from equal treatment only applies to pay. You will be entitled to all other equal treatment rights including rights on holidays, working time, access to the hirer's collective facilities and information about permanent vacancies with the hirer.

This exemption is known as the 'Swedish derogation' because it was introduced during negotiations of the EU directive on which the regulations are based, to accommodate working patterns peculiar to Sweden.

The 'Swedish derogation' model of contracting is has been widely used as an avoidance mechanism by unscrupulous employers to escape the equal pay obligations under the Agency Workers Regulations.

In a major victory for the TUC and individual unions, the government has agreed to abolish the Swedish derogation. From 6 April 2020, contracts on this basis are set to become unlawful. 

Contact your union or the regulator - the Employment Agency Standards Inspectorate - if your agency continues to operate using this kind of model beyond April 2020. 

Note: This content is provided as general background information and should not be taken as legal advice or financial advice for your particular situation. Make sure to get individual advice on your case from your union, a source on our free help page or an independent financial advisor before taking any action.

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