In Northern Ireland, a key piece of legislation dealing with agency workers is The Agency Workers Regulations (Northern Ireland) 2011. A hirer should ensure that from the first day of an agency worker’s assignment, they have access to collective facilities and amenities provided by the employer and information on job vacancies. If the agency worker completes a qualifying period of 12 continuous weeks in the same job with the same hirer, they are afforded further equal treatment rights relating to pay and other basic working conditions (such as annual leave and rest breaks). However, if an agency worker accepts a permanent contract with an agency who pays the agency worker between assignments and the worker agrees, then the agency worker will not be entitled to treatment on equal pay as if they had been recruited directly (this is referred to as ‘Swedish Derogation’).

Distinction between an employee and worker

Employers will be aware that there is a key distinction between an employee and a worker. Employees have greater rights afforded to them by virtue of the Employment Rights (Northern Ireland) Order 1996 versus workers. The distinction between the two is muddied by the introduction of an intermediary, that being the employment agency. Therefore, it is usually up to the employment tribunals to determine whether the worker is an employee or not.

Further Reform

Employers will be aware that there is a significant overhaul of employment law in Northern Ireland coming in the form of the “Good Jobs” Employment Rights Bill, which also looks to enhance protections for agency workers. Proposals have included, abolishing ‘pay between assignment’ contracts / the Swedish Derogation. Employers should aim to stay informed of any legislative developments in this area.

This article was provided by Madison Bowyer, an Associate in the Employment Law Group at Arthur Cox NI. 

T:+44 28 9026 5886 
E: Madison.bowyer@arthurcox.com 
https://www.arthurcox.com/