Problem Agency Workers Regulations

clunky1965

Could somebody advise me please. I have worked for a company via an agency since Oct 2014. In that time the hirer company have had me working via three different agencies but always the same location.
I am employed as a Fork lift driver on a flat rate of £7.50 per hour. I work 50 hours per week but paid the same hourly rate. I get 28 days holiday per year.
In Oct 2016 a new agency worker started doing same job but via a different agency to mine and I discovered he was paid £9 per hour. I made a complaint to the hire company and was told I could come into the company books this April but that the basic rate on the books £7.25 per hour plus £5 per week for driving a Fork lift, so I'd be better off staying in the agency and that they couldn't pay me £9 per hour.
I then discovered in January this year that the new worker would be entitled to overtime rate of time and half after 37.5 hours per week.
I got a copy of the company's employees handbook and I discovered that overtime is payable at time half after 37.5 hours and they also give 31days paid holiday. So would I be able to claim backdated overtime plus the additional £5 per week and holiday pay. And can I do anything about getting the £9 per hour the other chap is on but with different agency.

General_Grant

clunky1965 wrote: »

Could somebody advise me please. I have worked for a company via an agency since Oct 2014. In that time the hirer company have had me working via three different agencies but always the same location.
I am employed as a Fork lift driver on a flat rate of £7.50 per hour. I work 50 hours per week but paid the same hourly rate. I get 28 days holiday per year.
In Oct 2016 a new agency worker started doing same job but via a different agency to mine and I discovered he was paid £9 per hour. I made a complaint to the hire company and was told I could come into the company books this April but that the basic rate on the books £7.25 per hour plus £5 per week for driving a Fork lift, so I'd be better off staying in the agency and that they couldn't pay me £9 per hour.
I then discovered in January this year that the new worker would be entitled to overtime rate of time and half after 37.5 hours per week.
I got a copy of the company's employees handbook and I discovered that overtime is payable at time half after 37.5 hours and they also give 31days paid holiday. So would I be able to claim backdated overtime plus the additional £5 per week and holiday pay. And can I do anything about getting the £9 per hour the other chap is on but with different agency.

With the length of service you have (as long as always in the same role and without a break) you should be compared with an employee of the employer who provides the work. Legally your comparison worker is not another agency worker.

So you need to know what a directly employed person would earn in the role. Is there anyone in a truly comparable position? The other agency worker gets more than statutory paid leave entitlement. Do direct employees of the organisation which uses your services also receive more than statutory paid leave (perhaps after a certain period of continuous employment)?

clunky1965

General_Grant wrote: »

With the length of service you have (as long as always in the same role and without a break) you should be compared with an employee of the employer who provides the work. Legally your comparison worker is not another agency worker.

So you need to know what a directly employed person would earn in the role. Is there anyone in a truly comparable position? The other agency worker gets more than statutory paid leave entitlement. Do direct employees of the organisation which uses your services also receive more than statutory paid leave (perhaps after a certain period of continuous employment)?

I should add that at my location there is only three of us. That's a manager employed by the hirer company and two Fork lift drivers, which is me and a guy from an alternative agency who is on £9 per hour.
The company have a distribution depot elsewhere their employed fork lift drivers are on £7.25 per hour plus £5 per week. So where the agency works miss out is the overtime at time and a half and the 31 days holiday instead of 28 days

General_Grant

clunky1965 wrote: »

I should add that at my location there is only three of us. That's a manager employed by the hirer company and two Fork lift drivers, which is me and a guy from an alternative agency who is on £9 per hour.
The company have a distribution depot elsewhere their employed fork lift drivers are on £7.25 per hour plus £5 per week. So where the agency works miss out is the overtime at time and a half and the 31 days holiday instead of 28 days

How old are you? The National Living Wage (for those 25+) is due to increase to £7.50/hour on 1 April so they would have to pay that if you are old enough.

Would a directly employed worker be paid time and a half for overtime. Do you work overtime?

clunky1965

General_Grant wrote: »

How old are you? The National Living Wage (for those 25+) is due to increase to £7.50/hour on 1 April so they would have to pay that if you are old enough.

Would a directly employed worker be paid time and a half for overtime. Do you work overtime?

Yes a directly employed worker would get paid time and a half, after 37.5 hrs. I'm working 50 hours on a flat rate of 7.50 per hour
Would I have an equal pay case in regard of other agency worker getting £9 per hour for same job? But he is with a different agency?

General_Grant

clunky1965 wrote: »

Yes a directly employed worker would get paid time and a half, after 37.5 hrs. I'm working 50 hours on a flat rate of 7.50 per hour
Would I have an equal pay case in regard of other agency worker getting £9 per hour for same job? But he is with a different agency?

I wonder if the agency worker gets as much overtime or does he get less because he is more expensive.

General_Grant wrote: »

With the length of service you have (as long as always in the same role and without a break) you should be compared with an employee of the employer who provides the work. Legally your comparison worker is not another agency worker.

You said that you could be taken on to the permanent staff but receive less pay for your basic hourly rate. However, as mentioned before, the National Living Wage increases in April which is when you said you could be take onto the permanent staff. If you can get them to take them on (even at the current £7.25/hour rate) you would be better off financially if you continue to work that amount of overtime. I reckon you would receive £407.75 compared with £375 on your current agency rate.

If you do have 12 weeks continuous time in the role, you should contact your agency as your employer to tell them you should be paid on the same terms a the permanent staff (including extra for the extra holiday entitlement).

patman99

As you have been in the same role at the same hirer for over 12 weeks, you are entitled to the same overtime pay as a directly-employed person.

You can sue each of the agencies for the time you worked for each n order to get what you are legally entitled too if you wish. Or, you could simply work a flat 37.5 hour week and tell them you will no longer be working beyond this until you are correctly paid the overtime.

Meanwhile, find out which agency the new guy works for and speak to them to see if they will take you on their books and keep you at the same location.

clunky1965

Thank you for the replies. If I go for two years overtime back payment from the different agencies would the AWR automatically base my overtime claim on the £7.25 rate that the hirer pay their on books staff, or would I be able to claim on the £7.50 rate that the agency pay?

anamenottaken

clunky1965 wrote: »

Thank you for the replies. If I go for two years overtime back payment from the different agencies would the AWR automatically base my overtime claim on the £7.25 rate that the hirer pay their on books staff, or would I be able to claim on the £7.50 rate that the agency pay?

The right to overtime back payment (not for the first 12 weeks at the start of your continuous employment) is because you would be claiming equality with directly employed staff - so it would be for the difference between what you received at £7.50 (or whatever was paid at the time if your rate has changed over time) and whatever a permanent employee would have received working directly for the hirer.