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Customers who employ staff via a temporary work agency will need to be aware of the implications of the Agency Workers Regulations.

From day 1 as an employer you must;

  • Provide protection against discrimination
  • Pay at least the minimum wage
  • Provide a minimum of 5.6 weeks holiday entitlement (this includes bank holidays)
  • Provide the same access to shared facilities and services as direct employees, as an example;
    • The canteen or food and drink machines
    • Car parking or transport services

After 12 weeks (known as the 12 week minimum qualifying period) employed on the same assignment agency workers are entitled to the same conditions as direct employees (known as the right to equal treatment to pay);

  • Basic pay
  • Holiday pay that’s more than the legal minimum
  • Individual performance related bonuses
  • Commission
  • Overtime pay
  • Allowances for working shifts or unsocial hours

The right to equal treatment to pay does not include;

  • Bonuses linked solely to company performance or to reward long-term loyalty
  • Expenses
  • Enhanced maternity, paternity and adoption pay and shared parental pay
  • Company pension schemes
  • Redundancy that’s more than statutory
  • Sick pay that’s more than statutory
  • Guarantee payments
  • Season ticket loans
  • Paid time off for trade union duties

The 12 week ‘clock’ applies to an agency worker employed in the same role for 12 weeks, a week counts as any 7 days that you work in, from the day your assignment begins.

A week still counts towards the 12 week qualifying period if you do not work because of:

  • Pregnancy
  • Childbirth
  • Maternity leave that you take during pregnancy and up to 26 weeks after the birth
  • Paternity leave
  • Adoption leave
  • Shared parental leave

A week does not count towards the 12-week qualifying period if;

  • The total break you have between 2 periods of work is no more than 6 weeks
  • You’re absent due to sickness or jury service for 28 weeks or less
  • You take any of your holiday entitlement
  • The workplace shuts down, for example for Christmas or industrial action

A 12 week qualifying period will start again if the agency worker:

  • Goes back to the same assignment after a break of more than 6 weeks as long as it’s not due to any of the reasons in the lists above
  • Goes back to the same role after 28 weeks’ absence due to sickness or jury service
  • Starts a new assignment with a new hiring organisation

Under the Agency Workers Regulations, agencies are not allowed to create patterns of assignments that stop you reaching the 12 week qualifying period.

If you’re thinking of outsourcing your HR, payroll or employment law needs, why not contact myHRdept? Call us on 01628 820515, email us at to discuss your requirements, or contact us via our website and we’ll call you back.


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