Agency Workers rights. Any Employment lawyers out there?

Agency Workers rights. Any Employment lawyers out there?

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JensenA

Original Poster:

5,671 posts

229 months

Friday 18th April 2014
quotequote all
I work in the Automotive Trade as a contractor - not all PH'ers are High paid IT consultants. About 75% of the workforce are employed through an Agency, they are the ones who hire and fire us, although we all 'say' we work for XYZ Ltd. Now I was recently chatting to a friend who is a director for a large company (in the food industry as it happens) and I was moaning about not having paid holidays, paid bank holidays etc, and he was amazed that we do not get them. His company employs workers through an agency and they have to, by law, pay their agency workers for Bank holidays, and also pay them for annual holidays.. He cited the Agency Workers Regulation Act 2010, which states that Agency workers are entitled to much the same rights as full time employees.

If any of us mentioned this to the agency we would find ourselves 'stood down' (as they call 'sacking'). I have googled this topic and everything seems to point to the conclusion that the agency is in fact breaking the law, by not paying us. Is there any one out there who knows the true facts? It seems incredible to me that a large employment agency is able to flout the law, but that appears to be the case.

Countdown

39,690 posts

195 months

Friday 18th April 2014
quotequote all
I don't think Bank Holidays have to be paid. However you are supposed to get 21(?) paid holidays a year and the Agency should be building this into your hourly rate. So, for example, if you were on £15/ph the Agency would say your hourly rate was £14 + £1 holiday pay.

So yes you should get paid holidays but not necessarily paid bank holidays.

With regards to being sacked and companies flouting employment laws - yep, happens quite a lot unfortunately. IME they don't flout them openly, just tinker at the edges.

H22observer

784 posts

126 months

Friday 18th April 2014
quotequote all
Are you a PAYE employee of the agency or are you classed as a self-employed contractor to reduce NIC and Income tax ?

JensenA

Original Poster:

5,671 posts

229 months

Friday 18th April 2014
quotequote all
Thanks for the replies, but let me clarify.
The Agency workers act - as it has been explained to me - is designed to give Agency workers very similar rights to full time employees. If the Agency pays me £15 an hour, but in order to 'pay' me when I go on holiday, they deduct £2 an hour and use that to fund my holiday, then in effect I am paying for my own holiday aren't I? It is not a paid holiday.
The Act is designed to prevent Employers exploiting Employees by recruiting Agency workers so they can avoid paying holiday pay, and bank holiday pay. (Read the Act, it states that Agency workers should have basically the same rights as full time employees - apart from hiring and firing at will with no notice given).

The Agency recruits us, but we are paid by, and technically employed by, another company Some of us have formed either limited companies, or gone the Sole trader route to minimise our tax liabilities. But for the rest of us, even if we are technically employed by another company, then it is THAT company that should be paying us hour holiday pay. It is THAT company that should issue an invoice to the company that is using Agency workers, stating 'Here's the invoice for Fred Smith, he's on holiday this week, but you have to pay him to comply with the law'

It's all a big fiddle as far as I can see. I worked for another agency when the act came into force, our hourly rate remained the same, and we all started to receive holiday pay.

I really need someone who understands the law, to explain the situation. Many thanks.


Zeeky

2,779 posts

211 months

Friday 18th April 2014
quotequote all
Jensen, before you get bogged down in the detail are you assigned to xyzLtd temporarily or permanently? Temporarily means that the assignment will come to an end on a condition being met such as the end of a fixed period of time or the completion of a particular project. Permanent means indefinitely.


The Agency Workers Regulations 2010 apply to temporary agency workers only.

H22observer

784 posts

126 months

Friday 18th April 2014
quotequote all
AWR regs won't apply if you are 'self-employed'.

The 2 options i had when i was a temp was :

1. Go PAYE. Get £9ph, 5.6 weeks annual leave and pay paye tax/ni for the year.

or

2. Go self-employed. Get £10.75ph, lose 3% handling fee, get no annual leave, pay £140 per year in NI and around £500-£1500 per year in tax.

I chose option 2. No workers rights but got to keep around 85-90% of my earnings.

i'm back on PAYE now and i get to keep 78.5% of my earnings.

JensenA

Original Poster:

5,671 posts

229 months

Friday 18th April 2014
quotequote all
Zeeky - we are all temporary, but some of us have been there for 4 years, I've been there for over a year.

H22observer - some have gone the self-employed/sole trade/limited company route purely to save money on tax.

The point is that the Act was designed to ensure that temporary workers who worked longer than 12 weeks received the same rights as full time employees.

https://www.gov.uk/agency-workers-your-rights

I need a specialist in this area to give me some advice and to tell me how the Agency is able to circumvent the law. As I stated previously, when I was working for a different an
Bench when the Act came into effect, we were all called into a meeting and informed that under the act we were now all entitled to paid holidays, and we were paid for bank holidays. The Agency we now work for is flouting the law, how are they able to do it?

anonymous-user

53 months

Friday 18th April 2014
quotequote all
PM me and I can recommend some experienced employment solicitors.

northandy

3,495 posts

220 months

Friday 18th April 2014
quotequote all
You need proper advice really.

But to explain where I works stance on AWR, all temps are paid as paye through an agency, they are paid the same hourly rate as similar skilled employees on the books, same hours, same shift pay rates, same holidays. The only thing they don't get is profit share or an attendance bonus we pay (AWR only insists piece rate bonuses are matched). Pensions are different.

So my take on it,If for your on paye and on say £12 an hour, if someone on the books doing the same job is on £15 then you have reason to complain.

JensenA

Original Poster:

5,671 posts

229 months

Friday 18th April 2014
quotequote all
Thanks Northandy - Do the agency workers get there holidays paid, ie receive pay whilst on holiday - and do they get paid on Bank holidays?


northandy

3,495 posts

220 months

Friday 18th April 2014
quotequote all
JensenA said:
Thanks Northandy - Do the agency workers get there holidays paid, ie receive pay whilst on holiday - and do they get paid on Bank holidays?
Yes, they get bank holidays and as per our employees 25 days holiday all paid not an addition to the hourly rate. Our employees also get service days so an extra days holiday after 2 years then another one each year to a maximum of 5 days, our agency guys get the same.

We do have some office based contractors, they are not paye, they seem to use umbrella companies. Now I know they have the same grumble that they don't get paid when off, but their hourly rate is higher (but nothing to compare it to as we don't have employed staff in the same roles).