My employer says we can't access information and consultation rights as we're agency workers rather than employees. Is this right?

The Information and Consultation of Employees Regulations 2004 (ICE) use the term 'employees' throughout, particularly when referring to the 'trigger mechanism' (i.e. the means by which ballots on ICE rights are put in place).

“Employee” is defined in the regulations as someone who has a contract of employment. The law in this area is very complicated. Some workers are excluded – for example, temporary agency workers (unless they are direct employees of the agency, which must itself consult with them) and freelancers. An individual is only categorised as an employee if they have a contract of employment. Some workers are excluded – for example, temporary agency workers (unless they are direct employees of the agency, which must itself consult with them) and freelancers.

It is worth noting that whereas only employees can benefit from consultation rights under the ICE regulations, by contrast trade union representation is open to all workers, including agency workers. Even if your employer is resistant to union involvement, if you can encourage enough co-workers to become members you may be able to secure representation by your union at work by applying through the statutory recognition procedure. Speak to a national union about the best way to go about this.

More information on the difference between workers and employees

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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