Agency Worker

The 12-week qualifying period resets if the agency worker moves to a substantively different role, takes a break of six weeks or more (for reasons other than certain specified absences such as maternity leave or illness), or if the hirer deliberately structures assignments to avoid the qualifying period (known as 'Swedish derogation' — which was abolished for new contracts from 6 April 2020). After qualifying, agency workers are entitled to the same pay, working time, night work limits, rest periods, and paid annual leave as comparable direct employees. The agency and hirer are jointly responsible for compliance. Agency workers can bring claims to an Employment Tribunal for breach of the Regulations, subject to the usual three-month time limit.

In practice, the 12-week clock is the thing that matters most and the thing most agency workers never track. It counts calendar weeks in which you worked at least one hour in the same role for the same hirer — not hours, and not continuous full-time weeks. Keep your own record of assignment start dates, the job title, and the hirer, because when a dispute arises the agency and the hirer will each point at the other.

Worked example: Marcus is placed by an agency as a warehouse operative at the same distribution centre from January. Directly employed operatives there are paid more per hour and receive a shift premium. In week 13 Marcus should move onto the same basic pay and the same paid annual leave entitlement as a comparable direct employee. Instead his rate stays the same. He writes to the agency requesting a written statement of his rights, which the agency must provide within 28 days, and then asks the hirer for the same information about a comparator. Armed with the pay gap, he starts ACAS early conciliation and lodges a tribunal claim for the shortfall.

The pitfalls are mostly about scope and timing. Equal treatment covers basic pay, working time, rest breaks and annual leave — it does not extend to occupational sick pay, redundancy pay, or company pension beyond auto-enrolment. Being an agency worker also says nothing about your employment status: you may be a worker of the agency, or in unusual cases an employee, and that determines whether you can claim unfair dismissal at all. A break of six calendar weeks or more between assignments generally resets the qualifying period, so employers who rotate people out for seven weeks are not necessarily acting unlawfully.

Agency work sits close to zero-hours contracts and the National Minimum Wage, which applies from your very first hour regardless of the 12-week rule. If your pay or holiday does not look right, read our guide to agency workers and act quickly, because the tribunal time limit is short.