Your work force may be made up of many different sources.

You may have agency workers under your employment, but have you considered what your duties and responsibilities are towards these individuals?

Could they in fact be seen by the Employment Tribunal as an employee?

If so, they could be entitled to benefits such as holidays and sick pay.

Generally, where there is no express contract between the parties, then the agency worker will not be an employee, as there will be no mutuality of obligation to provide work and for the worker to accept it.

However, it could be dangerous to assume that this is always the case. Despite the fact that an agency worker is not usually classed as an employee, the following case showed how careful you have to be as an employer. In this case an agency worker’s complaint of racial victimisation was upheld. When calculating the award the Employment Tribunal went on to find that he was actually an employee, not an agency worker.

This was because the employer had previously written to the agency worker using terms “employee” and “member of staff”, and the Court ruled that in doing so they had treated him as an employee.

As the employer didn’t believe the worker to be an employee they failed to follow the statutory Dismissal and Disciplinary Procedures (which was in place at that time), and as a result, the “employee’s” compensation was substantially increased.

This case is a clear illustration that you should never refer to agency workers as employees and you should deal with the agency when issues arise, otherwise you may grant them the right to claim unfair dismissal against you.

October 1, 2011 will see even more changes in respect of agency workers with the Agency Workers Regulations 2010 implementing the Temporary Agency Workers Directive (2008/104/EC). This directive will make it so that agency workers will have the same basic terms and conditions such as pay, working hours and holidays, as a directly employed worker, after they have been in the job for 12 continuous weeks.

It is essential to note that the 12-week period must be continuous, with the worker in the same role, with the same hirer throughout on one or more assignments/jobs.

Continuity of this 12-week period will be deemed to be broken if the worker, while assigned to the same hirer, is given a new role comprising of substantively different duties or work.

An agency worker will be considered to be in the same role over the relevant period unless:

• he or she starts a new role with the same hirer, whether supplied by the same agency or not.

• the work or duties that make up the whole or main part of that new role are substantively different from those that made up the previous role; and

• the agency has informed the worker in writing of the type of work he or she will be required to do in the new role.

If in any doubt about the employment status of your workers as always seek further legal advice.

Ingrams Solicitors, 10 Great North Way, York Business Park, York YO26 6RB