An agency worker is a suitably qualified person who has an agreement with an agency to work for another undertaking on either a temporary or permanent basis. Agency workers traditionally have not had the same employment rights as regular workers but significant advancements have been made in ensuring a greater degree of equal treatment for agency works, most notably through the Protection of Employees (Temporary Agency Work) Act 2012. In essence, the Protection of Employees (Temporary Agency Work) Act affords agency workers the right to receive the same treatment as that of comparable permanent employees had they been employed by the same end-user at the same time. In addition, agency workers also retain notable protection under the following pieces of legislation: Unfair Dismissals Acts 1977 to 2007, Redundancy Payments Acts 1967 to 2007, Minimum Notice and Terms of Employment Acts 1973 to 2005, Organisation of Working Time Act 1997, Payment of Wages Act 1991, Maternity Protection Acts 1994 and 2004, Employment Equality Acts 1998-2008.
The main issue that arises in respect of agency worker scenarios concerns whether the end-user (i.e. the company where the agency worker physically works) or the agency itself will be deemed to be the employer should the employee take a claim. The answer to this really depends on what claim the employee is taking. If the employee claims unfair dismissal, for example, then generally the end-user will be deemed to be the employer. However, claims such as those under the Redundancy Payments Act or Payment of Wages Act will generally be the responsibility of the end-user/agency that pays the agency worker’s wages (which is normally the agency and not the end-user).