Home Advice for Parents & CarersAgency workers Agency workers: rights at work when having a baby

Agency workers: rights at work when having a baby

Last updated: 9 May 2022

Your rights at work depend on your employment status. Many employment rights are available only to employees, and not to workers, so it is important to know which category you fall into. Many people who work for agencies are not employees, but it depends on your individual circumstances.

If you are an employee, see our other articles on employment rights and pregnancy and maternity rights at work. This article explains your rights as a worker.

How do I know if I am an employee or an agency worker?

Many people who work for agencies are not employees, but it depends on your individual circumstances. From 6 April 2020, you should be provided with a key facts statement from your agency before your assignment starts. This should include information on:

  • Whether you will be engaged under a contract of service, an apprenticeship or a contract for services;
  • The identity of the employment business;
  • Minimum rate of pay;
  • How you will be paid and by whom;
  • Any non-monetary benefits
  • Any deductions that apply to your pay (including information on which of these are required by law)
  • Details of any entitlement to annual leave.

Although this document might indicate whether or not you are an employee rather than a worker, it is not the only thing that would be taken into account by an employment tribunal if they needed to look at this to establish your rights. Additionally, even without a written contract you may still have an ‘implied’ contract of employment and be an employee.

Broadly there could be a contract of employment if the following conditions are satisfied:

  • you do the work personally
  • when you do the work you are under the control of the agency (for example, they decide when, how and where the work is done, they keep track of attendance or lateness, decide when holiday is taken, or are in charge of discipline)
  • there is “mutuality of obligation” (particularly between assignments) – you are obliged to do the work and the agency is obliged to pay you
  • whether it looks (to a tribunal) like there is a contract of employment because, for example, the agency provides you with the tools you need to do the job, you are restricted from working for other people, or your agency provides you with training

For more information, see our article: Employed, self employed or worker?

Basic rights at work

If you are a worker and not an employee you still have many rights including:

  1. the right to be paid the national minimum wage;
  2. the right to paid holiday (28 days per year for a full time worker), and rest breaks under the Working Time Regulations;
  3. the right not to have your wages deducted unlawfully;
  4. protection from discrimination under the Equality Act 2010; and
  5. statutory sick pay, statutory maternity pay, statutory paternity pay, statutory adoption pay or statutory shared parental pay (but you will need to meet the qualifying conditions).

You should also be provided with access to workplace facilities (for example, the canteen or nursery) and be given information about employment vacancies.

After 12 continuous weeks in an assignment you are entitled to receive the same basic working and employment conditions as the hirer’s employees.

I can’t continue my assignment due to pregnancy related sickness, do I still have rights?

There is a protected period from the beginning of pregnancy until 2 weeks after the birth of your baby. If you cannot complete a placement because of a reason related to pregnancy, childbirth or maternity (e.g., pregnancy related sickness), you are considered as continuing in that placement until the date it was expected to end.

This means that if your placement was expected to end after your ‘qualifying week’ (the 15th week before your expected week of childbirth), you may still qualify for statutory family pay (e.g. maternity, paternity, adoption and shared parental pay, see below).

Rights during pregnancy

Agency workers have some of the same rights as other workers, such as the right not to be discriminated against because of pregnancy or maternity. You should not be treated less favourably, or refused work, because:

  • You are pregnant.
  • You have given birth in the last two weeks if you are not entitled to maternity leave.
  • You have given birth in the past year if you are entitled to maternity leave.
  • You have tried to assert one of your legal rights, such as the right to time off for ante-natal care or the right to a health and safety assessment.

It’s discrimination if your:

  • agency refuses to place you in a job because you are pregnant
  • hirer refuses to hire you because you are pregnant
  • job was terminated because you’re pregnant
  • agency refuses to keep you on its books
  • agency offers you only short jobs and gives longer ones to other agency workers
  • hirer will not let you come back after having leave due to maternity

Both the agency you work for and the company where you are working are under a duty not to discriminate against you.

Time off for antenatal care

From the outset of your pregnancy you are entitled to take time off (unpaid) to attend antenatal appointments and you are protected from discrimination. You are also entitled to a health and safety risk assessment (see below).

In addition, after 12 weeks in the same assignment, you are entitled to:

  1. paid time off to attend antenatal appointments if you are pregnant or adoption appointments if you are the main adopter (this should be paid by the agency at your usual hourly rate and you should not be asked to make up the time at a later date)
  2. time off (unpaid) to accompany a pregnant partner to two antenatal appointments
  3. time off (unpaid) to attend two adoption appointments if you are a co-adopter

For more information, see our article on time off for ante-natal care.

Health and safety rights

All employers are under a duty to provide safe workplaces, including for agency workers. If you are pregnant, you have a right to a risk assessment and your hirer and agency must remove health and safety risks. You should write and let your agency, and the hirer, know that you are pregnant and ask them to carry out a risk assessment.

Usually the responsibility for any adjustments will be with the hirer (the place where you work). However, the agency must also take reasonable steps to identify any known health and safety risks and satisfy itself that the hirer has taken steps to prevent or control the known risks. The agency must do this before you start work with the hirer.

Your remaining rights depend on whether you have completed 12 weeks with the same hirer in the same role.

I have completed 12 weeks with the same hirer in the same role

After you have completed 12 weeks with the same hirer in the same role, the hirer has a duty to make reasonable adjustments to protect your health and safety if you are pregnant (or if you have given birth in the last six months or are breastfeeding).

If they can’t make adjustments to make the job safe, then the hirer may decide that they want someone else to do the job. Your agency should offer you any suitable alternative work that is available. Any alternative should be paid at least as much as the original assignment, and the terms and conditions should not be less favourable.

If the agency cannot find any suitable alternative work for you (and you have not unreasonably refused suitable alternative work offered), they should pay you for the rest of the placement that has been ended.

I have not completed 12 weeks with the same hirer in the same role

If you are not an employee, and you have less than 12 weeks service with a hirer in the same role, you only have the right to a risk assessment and for risks to be removed. Unfortunately, you do not have a right to a suitable alternative role or to suspension on full pay.

What happens when I’m sick?

If you cannot work because you are too ill to work, then you may need to take sick leave. You are entitled to Statutory Sick Pay (SSP) if your earnings are higher than the lower earnings limit; and if you are absent from work for four consecutive calendar days. If you have been working for an agency for at least 3 months, then this entitlement should cover the period of sickness, up to 28 weeks. If you have been there less than 3 months, you should get sick pay until the end of the last assignment you agreed to work on.

Rights to maternity or family leave

Agency workers (who are not employees of the agency) are not entitled to statutory family leave – such as maternity, paternity, adoption and shared parental leave. This means that they cannot exercise rights to return to work that employees have.

Instead of statutory leave, you can agree to a period of time off with your agency and/or the hirer, or you can re-register with your agency when you are ready to return to work. Remember that it may be sex, or pregnancy and maternity discrimination if your agency refuses to give you work or treats you less favourably because you are pregnant or have taken time off for childbirth.

What happens if I want to go back to work after having a baby?

Agency workers don’t have a right to return to the same job after childbirth. However, it may be discrimination if your agency refused to give you work or treated you less well because you had taken time off for childbirth – if this happens seek advice.

Can I request flexible working when I return to work?

Not if you are an agency worker – the right to request flexible working is only available to employees who have 26 weeks’ service with their employer.

I had a baby and my agency terminated me and sent me a P45, can they do this?

If you are not receiving Statutory Maternity Pay (SMP) from your agency, your agency can issue a P45 once you have been absent from work for more than three months without any pay. This may happen if you are not entitled to SMP and are receiving Maternity Allowance instead (see below).

You can still sign back on with the agency once you are available for work again. Remember, it may be discrimination if your agency refused to give you work or treated you less well because you had taken time off for childbirth – if this happens seek advice.

Rights to maternity or family pay

You don’t have to be an employee to receive Statutory Maternity Pay (SMP) or paternity, adoption or shared parental pay. If you meet the qualifying conditions, you can claim statutory pay from your agency. If you are not able to claim SMP, you may still be eligible for Maternity Allowance. More details about both are available on our pay on maternity pay and benefits.

Can partners claim Statutory Paternity Pay?

If they meet the qualifying conditions, yes, but note that they will not be entitled to leave if they are not employees. An agency worker who qualifies for Statutory Paternity Pay (SPP) as an “employed earner” will have to tell the agency that they do not wish to be allocated work during the one or two weeks that they choose to receive SPP.

What about Statutory Adoption Pay?

Similarly, an agency worker may meet the conditions for Statutory Adoption Pay (SAP) or Statutory Paternity Pay (adoption) if they are the partner of the main adopter.

Can my partner or I take Shared Parental Leave?

If you are not an employee, you can’t take Shared Parental Leave (SPL), but some workers may meet the qualifying conditions for Shared Parental Pay (ShPP). If your partner is an employee, they may be able to take SPL if you both meet certain conditions:

  1. your partner is an employee and has been continuously employed for 26 weeks with their employer up to and including the 15th week before the expected week of childbirth
  2. your partner is still employed the week before SPL is due to start
  3. you and your partner share responsibility for the child
  4. you are entitled to SMP or Maternity Allowance and have curtailed (cut short) that entitlement

More information on how to curtail your entitlement to create an entitlement of SPL for your partner is available on our pages on Shared Parental Leave.

Can I work while I’m receiving maternity pay?

Agency workers (who are not employees of the agency) are not entitled to maternity leave, so they cannot carry out any “Keeping in Touch” (KIT) days.

However, if you are receiving SMP, you can carry out self-employed work without it affecting your SMP. If you are on Maternity Allowance you can only work for 10 days in any capacity without it affecting your entitlement.

If you go back to work for your agency during a period when you are being paid SMP or Maternity Allowance, then your entitlement will stop. If you start being paid in a new job with an employer you did not work for in the 15th week before the expected week of childbirth, then your entitlement to SMP will end. We have more information on the rules about working during maternity leave.

Note that similar rules apply to those on Statutory Paternity Pay (SPP), Shared Parental Pay (ShPP), and Adoption Pay (SAP) – your entitlement is not affected by self-employment work, but may be affected if you work for an employer (including an agency).

Can I get SMP if I change agencies while I’m pregnant?

Agency workers can get Statutory Maternity Pay (SMP) if they meet the normal qualifying conditions. If you switch agencies before the ‘qualifying week’ (the 15th week before your expected week of childbirth), you will be regarded as changing ‘employer’ if you start work for a new agency as this will break your continuous employment. In this situation, you will not qualify for SMP, but may qualify for Maternity Allowance.

If you are considering changing agencies, we recommend that if possible you wait until after your qualifying week to change agencies. If you change agencies after the 15th week before your baby is due, you can still get SMP from your old agency if you met the qualifying conditions.

My agency won’t pay me statutory pay, what can I do?

If you cannot resolve a dispute about your statutory family pay, you can ask HMRC Statutory Disputes Team for a decision on your entitlement. For more information, see our article on what to do if my employer does not give me statutory pay?

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.

We cannot provide advice on employment rights in Northern Ireland as the law is different. You can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.