Agency Workers and Workplace Discrimination Rights

Agency workers form a significant part of the workforce in England and Wales, providing flexibility for employers and opportunities for individuals to gain work in a range of sectors. Despite the non‑traditional nature of employment through an agency, these workers are protected by key legal rights, including protection against workplace discrimination under UK law. This guide explains the rights of agency workers, how discrimination protections apply, the relevant legal framework, procedures for raising complaints, time limits for claims, and practical considerations for both agency workers and employers.

Who Is an Agency Worker?

An agency worker is someone supplied by a recruitment agency (often called an employment business) to work for a separate organisation (the hirer) on a temporary basis. During an assignment, the hirer directs and supervises the agency worker's day‑to‑day duties, even though the contractual relationship remains with the agency.

Agency workers may have employment status (as an employee or a worker) depending on the terms of their contract, the obligations of the parties and the reality of the working arrangement. The protections discussed below apply to agency workers who meet the statutory definitions of workers or employees.

Legal Protection Against Discrimination

Equality Act 2010 Protection

Agency workers are protected from discrimination under the Equality Act 2010, the principal legislation governing unlawful discrimination in employment and vocational contexts. This means that agency workers must not be treated unfavourably because of a protected characteristic such as age, disability, sex, race, religion or belief, sexual orientation or other protected traits under the Act. Protection from discrimination applies from the start of an assignment and continues throughout the working relationship. The agency, the hirer and their staff can potentially be held liable for discriminatory conduct.

This framework covers direct discrimination, indirect discrimination, harassment and victimisation. Agency workers are entitled to the same standard of protection as direct employees and can bring claims before an Employment Tribunal if they are unlawfully discriminated against.

Equal Treatment and the Agency Workers Regulations 2010

In addition to discrimination protections, agency workers are protected by the Agency Workers Regulations 2010 (AWR), which aim to prevent less favourable treatment compared to direct employees doing the same or similar work. The Regulations do not replace discrimination law, but complement it by addressing disadvantage related to terms and conditions of work.

Day One Rights

From the first day of an assignment with a hirer, an agency worker has the right to:

• Access the same collective facilities and amenities as comparable employees (for example, canteens, childcare or transport services).
• Receive information about job vacancies at the hirer and the opportunity to apply.
  These rights help ensure that agency workers are not marginalised or excluded from workplace benefits simply because of their employment arrangement.

Equal Treatment After 12 Weeks

Once an agency worker has been in the same role with the same hirer for 12 continuous weeks, the AWR entitle them to equal treatment in basic working and employment conditions as if they had been directly employed by the hirer. This typically includes:

• Equal pay with comparable employees performing the same work.
• Equal working time, rest breaks and holidays.
• Equivalent pregnancy and maternity rights.
  These provisions prevent long‑term agency roles from becoming a lower‑paid or less favourable alternative to direct employment.

How Discrimination Can Arise for Agency Workers

Direct Discrimination

Direct discrimination happens when an agency worker is treated less favourably because of a protected characteristic. Examples include:

• Being passed over for assignments due to age or ethnicity.
• Refusal of shift opportunities because of sex or religious observance.
• Detrimental treatment after raising concerns about discriminatory behaviour.

The discriminatory reason must be proven to have influenced the unfavourable treatment, which is assessed by tribunals on the balance of probabilities.

Indirect Discrimination

Indirect discrimination occurs when a policy or practice applied to all workers disproportionately disadvantages agency workers with a protected characteristic, and cannot be justified as a proportionate means of achieving a legitimate aim. For example, if access to desirable assignments is systematically restricted by a practice that disadvantages a protected group, this may give rise to an indirect discrimination claim alongside AWR protections.

Harassment and Victimisation

Harassment (unwanted conduct linked to a protected characteristic) and victimisation (detrimental treatment because an agency worker has asserted legal rights or supported another's complaint) are prohibited under the Equality Act 2010 and can form the basis of tribunal claims if experienced during an assignment.

Bringing a Claim: Tribunal Procedures and Time Limits

Acas Early Conciliation

Most discrimination claims must begin with Acas Early Conciliation, a statutory requirement before presenting a claim to the Employment Tribunal. Early Conciliation provides an opportunity to resolve issues without formal litigation and is a prerequisite for lodging a tribunal claim.

Time Limits

Generally, an agency worker must present a discrimination claim to the tribunal within three months less one day from the date of the discriminatory act. If discrimination arises over a period of time, the three‑month period may run from the last act in that series, but strict compliance remains critical.

Naming Parties

When bringing a claim, agency workers should consider naming both the agency and the hirer (if both are responsible for the discriminatory conduct). Liability can extend to either or both parties where they have contributed to the unfavourable treatment.

Employment Status and Its Relevance

An agency worker's employment status influences certain rights beyond discrimination protections. Workers and employees enjoy core protections from discrimination, but other rights (such as unfair dismissal) depend on status and length of service. An individual wrongly classified as genuinely self‑employed may have limited recourse under employment law; in such cases, establishing that they are a worker or employee is often a preliminary step needed to access rights. Historically, cases such as Muschett v HM Prison Service highlighted difficulties when the contractual relationship lacked mutual obligations, though this area remains legally complex and fact sensitive.

Practical Steps for Agency Workers

Keep Records

Maintain detailed records of assignments, communications, offers and refused shifts. Written evidence strengthens discrimination claims and shows patterns in allocation or treatment that may support a legal argument.

Identify Comparators

Tribunals often compare agency workers with comparable employees doing the same or similar work. Identifying appropriate comparators is important in discrimination and AWR equal‑treatment claims.

Raise Concerns Through Internal Procedures

Before initiating tribunal proceedings, agency workers should raise concerns with the agency and, where appropriate, the hirer through grievance procedures. Documenting this process can help demonstrate that the individual sought to resolve the issue internally.

Employer Responsibilities

Fair Allocation and Opportunities

Agencies and hirers should ensure that assignment offers and access to opportunities are made objectively, without reference to protected characteristics. Decisions about shifts, hours and development should be based on neutral criteria such as availability and competence.

Compliance With Regulations and Equality Law

Both agencies and hirers must comply with the Equality Act 2010 and the Agency Workers Regulations 2010. Failure to do so can result in tribunal claims, contractual liability, compensation awards and reputational harm.

Training and Policy Enforcement

Clear anti‑discrimination policies and regular training for staff who supervise or allocate agency workers help ensure awareness of legal obligations and reduce the risk of unlawful treatment.

Key Takeaways

Agency workers in England and Wales enjoy significant legal protections against discrimination under the Equality Act 2010 and specific rights under the Agency Workers Regulations 2010. From the first day of an assignment, agency workers must not be discriminated against because of a protected characteristic, and after a 12‑week qualifying period they are entitled to equal treatment in key employment conditions. Discrimination claims typically require engagement with Acas Early Conciliation and adherence to statutory time limits. Agency workers should maintain records, identify appropriate comparators, and consider internal resolution before tribunal proceedings. Both agencies and hirers should apply neutral criteria in work allocation and enforce anti‑discrimination policies to meet legal obligations and minimise legal risk.