I work through an agency. Am I an employee or a worker?

Your rights at work depend whether by law you are an employee (which means that you get better rights) or a worker (which means you do not do so well). This is an important difference, but there is no easy test. Many agency workers fall into the grey area between the two. Ultimately only an employment tribunal or a court can decide, though advice agencies and unions have lots of experience.

You are likely to be an employee if:

• your employer provides work within set hours and pays you for being available to work.
• you have to accept the work provided by your employer and are not free to turn work down.
• your employer controls what you do and lays down how and when you do it
• you have to carry out the work personally, and cannot send someone else to do it on your behalf
• your employer supplies the tools or other equipment for the job
• your employer deducts tax and National Insurance from your wages (although some workers also have this)

You are likely to be a worker if:

• your employer only offers work as it is available, and you are hired to complete a task rather than attend between set hours
• you can decide when you will work, and turn down work when offered
• you can send someone else to do the work in your place if you want
• you provide your own tools and equipment.
• you do not have tax and National Insurance deducted from what is probably called a payment or fee rather than wages (though some workers do have deductions)

As an agency worker, you are more likely to be an employee if:

• You have worked for the agency or placement company continuously for some time and would expect this to continue unless they dismiss you
• The days you work, your terms and conditions are at the direction of the agency / company
• The agency or company can dismiss you for misconduct
• You have access to a grievance procedure under your contract

Some of our most important employment rights are unfortunately only available to those who are classed as 'employees'.  These are set out below.  Many agency workers do not qualify for these rights as they do not pass the 'employee' test. 

• The right to claim unfair dismissal where you are sacked without notice or good cause. 
• The right to redundancy pay
• The right to take maternity, paternity and parental leave and to request flexible working
• The right to paid time off for antenatal care.  
• Right to a written statement of main terms and conditions of employment