Agency workers: rights at work when having a baby

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?

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).

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.

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.

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.

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.

Only Employees can make a statutory request for flexible working.

As a worker (rather than an employee), you do not have the right to make a statutory flexible working request (which includes specific protections and timelines). However, you can still make an informal flexible working request, and any response from your employer must not be discriminatory under the Equality Act. Under the Equality Act, indirect sex discrimination, can occur if a policy – such as requiring full-time hours – disadvantages women, who are more likely to have childcare responsibilities. However, an employer can justify such a policy if they can demonstrate that it serves a legitimate aim and is a proportionate means of achieving that aim.

For further information on making a flexible working request see our advice page here.

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.

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.

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.

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.

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).

Agency workers can get Statutory Maternity Pay (SMP) if they meet the normal qualifying conditions. If you switch agencies before the ‘qualifying week’ (the 15^th 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.

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?