Small businesses rely on temporary workers to help them grow during times of fluctuation and change without incurring additional costs and compliance requirements.
Despite not having the same rights as permanent employees, temporary workers still have some employment protections under laws such as the Health and Safety Act, the Working Time Regulations, and the Equality Act.
This article explores the rights of two types of temporary workers: agency workers and apprentices, and provides insight into the employment regulations that apply to them.
Types of temporary workers
Agency workers
Agency workers are individuals hired on a short-term basis for a specific project or seasonal work. Although the agency is considered the employer, the host company must ensure equal treatment of agency workers compared to its own employees after a 12-week qualification period.
Agency workers can’t opt out of these rights and are entitled to the same on-site facilities provided to other employees.
To comply with regulations, limit the use of agency workers to a maximum of 12 weeks or consider alternative options such as overtime for existing employees or self-employed contractors.
The 12-week rule does not apply if the agency worker starts a new assignment that is significantly different, begins a new assignment with a different client, or has a break of at least 6 weeks.
Apprentices
An apprenticeship is a form of on-the-job training that allows individuals aged 16-24 to obtain a nationally recognised certificate.
An employment contract is considered an apprenticeship contract if its primary purpose is to train the employee.
The more commonly used apprenticeship agreement is described in the Apprenticeship, Skills, Children, and Learning Act of 2009, which provides a prescribed form that must include the skill, trade, or occupation for which the apprentice is being trained.
This type of agreement is typically for a fixed period of time and is considered a service agreement and may provide more flexibility for termination in the event of misconduct on the part of the apprentice.
Do temporary workers get benefits?
The employment law rights provided to a temporary worker will depend on which of the three types of employment relationships apply:
- An employee working under a contract of service
- A worker
- Self-employed working under a contract for services
Employees have the greatest amount of protection. However, almost all temporary workers will be entitled to the following:
- The National Minimum Wage, National Living Wage or Apprentice Rate
- Paid holidays
- Parental and maternity leave (with conditions)
- Freedom from discrimination under the Equality Act 2010
- Statutory Sick Pay (SSP)
- Protection from unlawful wage deductions
- Use of shared workplace facilities like a canteen, or gym
- A safe workplace
Are temporary workers entitled to holiday pay?
Yes, they are. However, a recent Supreme Court ruling has added confusion to the calculation of holiday entitlements for workers with irregular schedules, such as part-year workers, casual workers, and agency workers.
The decision stated that the 5.6 weeks annual leave entitlement under the Working Time Regulations 1998 cannot be reduced pro rata for part-year workers, leaving employers uncertain on how to properly calculate leave for these types of workers.
Our employment law solicitors can assist you with making correct holiday pay calculations and advise you on any changes to the law following the Supreme Court’s decision and the Government Consultation on the matter.
Do temporary workers get a pension?
Any staff aged between 22 to State Pension Age and earning over £192 a week, or £833 a month, must be put into a pension scheme that you, as an employer, are required to pay.
Does TUPE apply to temporary workers?
Only workers on full-time or fixed-term contracts are protected under TUPE.
Therefore, in theory, TUPE does not apply to agency workers. However, this is a grey area.
There is a general rule that if workers spend 50% or more of their working time in the transferring business or service, they automatically transferred to the new employer, but this is not a fixed rule.
To protect yourself from an Employment Tribunal claim, you should seek legal advice to understand which of your workers is covered by TUPE before you transfer the business or service.
Are temporary workers entitled to bank holiday pay?
It will depend on their employment contract. There is no statutory right for any employee or worker to receive extra pay if they are required to work a bank holiday.
Do temporary workers get sick pay?
Statutory Sick Pay (SSP) is available to temporary workers as long as:
- They've done some work for you
- They're ill for four days or more in a row (including days off)
- They follow your rules about reporting sickness—or tell you within seven days
Can temporary workers join a union?
Agency workers can join a union, and as an employer, you cannot discriminate against any worker who chooses to do so.
A temporary employee also has the right to be accompanied at a workplace disciplinary or grievance hearing by a trade union representative or a colleague.
Get legal assistance from LawBite
Understanding the rights of workers, employees and contractors can be both complex and costly if you’re not compliant. Our experienced employment lawyers can assist you with anything related to the rights of temporary workers from contractor contract drafting to general guidance in this area.
Book a free 15 minute consultation or call us on 020 3808 8314 for personalised assistance for your business's commercial, corporate, and employment legal needs.
