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. However, there is evidence that the 'Swedish derogation' model of contracting is being adopted by unscrupulous employers in the UK as a means of avoiding giving workers the equal rights provided by the directive. This has led to a formal complaint by the TUC to the European Commission.
If this is your experience, and you are not yet a member of a trade union, consider joining a union and trying to build union membership among fellow agency workers at the agency that employs you, so that a union can apply for recognition at the agency.
A trade union will be able to bargain for decent terms and conditions, making it harder for your employer to exploit loopholes to avoid paying decent wages. You can find information about how to join a union on our Union Finder tool.