Holiday Rights For Agency Workers?

[Erlicheer]

Hi there,

I'd be most grateful if anyone is able to help me.

I've worked full-time for six months for the same company as an agency worker, employed through a large high street employment agency. The hiring company expects to have a role for me there for at least another year.

My understanding was that, under the Agency Workers Regulations, I'm entitled to the same paid annual leave allowance as my directly-employed colleagues. (Also, my company doesn't distinguish between Day 1 and 12 week rights - they give agency workers equal rights from day 1).

I also understood that, under the Working Time Regulations, I'm entitled to accrue holiday during any sick leave in the same way as a direct recruit.

However, after a short period of sickness (3 days), my agency is telling me that I do not accrue holiday for any days where I have not returned any hours and therefore not accumulated any pay.

They say the same applies to any flexi days I work (which are agreed with my hirer, and where I work my necessary full-time hours before taking the flexi time off).

Therefore, over the course of a year, I am currently on course to end up with significantly less paid holiday allowance than my directly-employed colleagues who work full-time and under the same conditions as me.

This seems to directly contradict the Agency Workers Regulations, which stipulate that I am entitled to equal treatment as my permanent colleagues as far as paid annual leave is concerned.

The agency appears to be behaving as though every time I have a sick day or a flexi day, it constitutes a break in my "assignment", even though I have worked there full-time week in, week out, for six months.

Is the agency's action legal?

I would be very glad indeed of any advice.

Many thanks!

Erlicheer.

 

[Christiane]

My OH has no end of bother with holiday pay with the agencies he has worked for. One of them did pay his holiday pay at the end of contract, although he had to claim it within a certain time frame, otherwise it was lost. Just ask the agency to clarify in writing how they operate their sick and holiday pay. But to be truthful, they are a law unto themselves! By all means, argue your case, make sure you write all the details, especially hours and days worked. When my OH has a break during holidays the contract doesn't end, it continues although he can only accrue holidays on days worked. If you've worked for the same company, I can't see it behind a break in contract.

 

[Richie N]

You should be entitled to 28 days (inc bank hols) per year which is accrued with your working hours etc.
If you don't work then you won't accrue any holiday pay.

If the client has agreed to pay more holiday than this, then it will reflect in your contract with the agency.

 

[HPS - Outsourced Payroll]

Hello Erlicheer

In relation to holiday pay, you are entitled to 5.6 weeks holiday pay over a 12 month period.

This is on a pro-rata basis and based on the accrual basis.

So if you work 3 days per week, you will be entitled to 3/5th's of your holiday entitlement.

Where your hours fluctuate, the average of the last 12 weeks should be taken to calculate your holiday entitlement.

We process payroll for 2 agencies based on our clients instructions. They advise us what to pay and when in terms of holiday as they administer this in-house.

An employee disputed the holiday they were entitled to and took them to a tribunal.

The tribunal ruled that the employee was entitled to the same holiday entitlement as the client they worked for existing staff and that where hours could fluctuate, so 30 hours one week, 40 the next, the average of the previous 12 weeks should be taken to calculate the employee's pro-rata holiday entitlement.

I hope this helps.

Toni

 

[Erlicheer]

Thank you all very much for your replies.

The company I work for agrees that I should receive 33 days paid leave per annum, including bank holidays, in line with its direct recruits. We all work 37 hours per week.

As I've been there six months, the Agency Workers Regulations make clear that I am entitled to this - ie equal treatment on paid annual leave as permanent employees.

What I'm trying to work out is how the temp agency can get round this by claiming they don't have to let me accumulate holiday when I'm on a flexi day or on sick leave?

I'm still in continuous service with my hirer, so whether I'm sick, have worked agreed flexi or whatever, surely at the end of the year I should have accumulated the same 33 days as everyone else?

The fact that the Regulations don't entitle me to company sick pay shouldn't have any bearing on my entitlement to annual leave, surely? They are two separate things as far as the regs are concerned. Or at least that's my reading, anyway....

I'm still very confused, I'm afraid!

Thank you again.

Erlicheer.

 

[SuffolkDesigns]

I would guess the advantage an agency has is that they don't have to give work to anyone they consider to be 'difficult' whether or not what they do is legal.

So if you fight them enough you may very well end up with the correct holiday entitlement, but no work.

 

[Erlicheer]

Thanks for your contribution, SmartSSR.

The company currently hiring me values me, and wants to see me receive the same paid holiday as their directly-recruited employees, which, in their view, the Agency Workers Regulations entitles me to.

It's the employment agency which regards things differently.

If I wasn't working for this particular company, I wouldn't spend a day longer with the employment agency - there'd be no reason to. And no agency that calls people 'difficult' for requesting their legal rights deserves any decent workers on their books, surely?