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Agency staff rights after 12 months service?

Agency staff rights after 12 months service

What rights would you accrue in the following circumstances?

My brother has his own Limited Company and is contracting through a recruitment agency to a local public organisation.

He has been in his current position for approximately 10 months and he has been told that his employment will end very shortly to prevent him accruing any rights having been with them for 12 months.

I do not understand what benefits / rights that he could accrue considering he is a contractor through an Agency. I have spoken to ACAS and our legal helpline and have been told that he will not get any rights. Unfortunately their HR Department have dug their heels in and are refusing to change their minds and despite intervention by senior management, it would appear he is going to lose this contract.

Maybe someone could enlighten me what benefits you might accrue in the circumstances above (or confirm that there aren’t any). Also if anyone has any bright ideas of a way round (maybe a weeks break in continuity of service) please let me know.

Thanks for your help.

Matt Young

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27th Jun 2006 10:36

Matt, I think the question here is whether your brother is genuinely self employed. Employment rights, such as the right to claim unfair dismissal (after 1 year)and redundancy pay (after 2 years) only accrue for employees along with a multitude of other rights! Employment status can be avoided by the written contract/consultancy agreement but the tax man and employment tribunals will now also consider other factors such control, mutuality of obligation. It appears to me, based on what you have said, that the public organisation is probably concerned that your brother may try to claim employee status and that the intermediary recruitment agency is not sufficient protection. In the case of Dacas v Brook Street Bureau the agency worker tried to claim employment status with the agency and although the tribunal rejected this claim their comments caused concern for many employers who use agency workers regularly as they indicated that if the agency worker had claimed employment status with the end user they may well have been successful. Obviously every case has to be looked at on its own merits.

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27th Jun 2006 10:37

I was in a similar position a few years ago. The 'benefit' was to be offered a permanent position. This was a union agreement with the company. I think a short term break could be the answer, but it really depends on the wording. Good luck.
Just for the record I took the job but everything changed even the work. The pay and conditions were worse and I left after a few weeks.

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