Agency Workers

The Protection of Employees (Temporary Agency Work) Act 2012 defines an “agency worker” as:

 “an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency”.

The Act provides that all temporary agency workers must have equal treatment with workers hired directly by the hirer in respect of:

  • Pay,
  • Working time,
  • Rest periods,
  • Rest periods during the working day,
  • Night work,
  • Overtime,
  • Annual leave, or
  • Public holidays.

Temporary agency workers must also have equal access, with the hirer’s own workers, to facilities such as childcare, canteen or similar amenities, or transport services.

Where a vacant position of employment arises with the hirer of an agency worker, the hirer must, when informing his/her own employees, inform any agency worker who is for the time being assigned to work for him/her, of the vacancy for the purpose of allowing the agency worker to apply for that position.

An employment agency cannot charge an individual a fee for seeking, or finding, employment arrangements. 

Agency workers, also known as temporary agency workers have an agreement with an agency to work for someone else.

While agency workers do not have all the same employment rights as permanent workers they do have the right to equal treatment in basic working and employment conditions.

Who is an agency worker?

You are an agency worker if you are employed by an employment agency and temporarily assigned to work for another organisation (the hirer).

Who is not an agency worker?

The following workers are not considered agency workers:

  • Independent contractors or business owners placed by an employment agency. In this case, the contractor is a client of the hirer.
  • Some workers under a managed service contract (for example, cleaning contracts), where the contractor manages and delivers the service.
  • Workers on Work placement   or any Department of Social Protection vocational training or re-training scheme.

Who is considered my employer?

Your employer depends on the specific employment rights you want to enforce.

In most cases (exceptions mentioned below), the party who pays your wages is typically considered your employer. This can be either the employment agency or the client company.

The Social Welfare (Miscellaneous Provisions) Act 2003 clarifies that agency workers are insurably employed and the person who pays the wages is the employer for PRSI and PAYE.

Entitlement to equal treatment

Agency workers must have equal treatment with regular workers from their first day at work.

As an agency worker, you are entitled to the same basic employment conditions as if you were directly recruited by the hirer.

These basic employment and working conditions are:

Conditions Details
Working time Covers working time, rest periods, breaks, night work, annual leave, and public holidays.
Pay

Includes: Basic pay, shift premium, piece work, overtime, unsocial hours worked, and Sunday work.

Excludes:  Occupational pension schemes, bonuses, maternity pay or benefit in kind.
Access to Facilities and Information Covers childcare, canteen and parking facilities and information about permanent job opportunities.

 

Under Section 13 of the Unfair Dismissals (Amendment) Act, 1993 an agency worker is deemed to be employed by the hirer and any redress under the Unfair Dismissals Act is awarded against the hirer. This means that, like any employee, an agency worker could seek to take a claim for an unfair dismissal against the hiring end User. Whilst many hiring companies will be conscious of the general position around an employee requiring 52 weeks service before they can take an unfair dismissal claim, there are exceptions to that service requirement including:-

  • A dismissal for trade union membership or activities;
  • A dismissal for a pregnancy related matter;
  • A dismissal for exercising a right to adoptive leave, carer’s leave, parental or force majeure leave;
  • A dismissal for exercising minimum wage rights;
  • A dismissal for having made a Protected Disclosure.

Protection against victimisation

You are protected against being victimised as an agency worker for reporting breaches of the Protection of Employees (Temporary Agency Work) Act 2012.

This means the hirer or agency cannot penalise you through dismissal, unfair treatment or unfavourable changes in your employment conditions.

Making a complaint

You can make a complaint to the Workplace Relations Commission about a breach of your rights as an agency worker.

You must make the complaint within 6 months of the dispute. The time limit can be extended for a further 6 months, if there is a reasonable cause which prevented you from bringing the complaint within the normal time limit.