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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hi there, I started working for a large construction company

Customer Question

Hi there,

I started working for a large construction company in June 2011 as a Surveyor, I worked freelance before and agreed an hourly rate of £21 p.h. with them before I started, their company policy required I work through an agency which I was happy to do and have been working through the agency for the last 3 years. I signed no contract with the agency
and have only ever spoke to them on the phone.

Last Monday I finished an assignment working in a small sub office in Devon and contacted
my line manager asking what he wanted me to do next. He didn't answer my calls / messages or return my emails untill Friday telling me there was delays to projects in the pipeline and having no more work and they would let me go that day. Just to note he gave me a glowing reference regarding the good work I have done.

A colleague told me about the Agency Workers Regulations (I was completely unaware of these regs). After reading briefly through it I got in contact with a Director explaining I was required to be given written notice to match my employed colleagues and they are giving me on going work again from Tuesday.

After reading more into the Regulations I wanted some advice from you on the paid holiday aspect of the regulations. The past 3 years I have been taking upto 4 weeks unpaid leave
a year - as I was told as an agency worker holiday time off was not paid for so I continued not claiming for holiday upto this present day.

Can I claim back the unpaid leave for the past 3 years as reading the agency workers regs I feel I have been completely mislead. I did read some agencies build a small contractual payment into the hourly rate to cover holiday pay but my agreement was a flat hourly rate for the work I was doing, and I have not signed any contract.

Can I claim back the 3 years holiday pay I have lost or is there a cut off period?
Also if I can claim is it the agency that pays or the company I work for. I always saw
the agency as the companies tool for handling payments.

Regards


Mike
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. You were not self employed I presume? For example, who sorted out your taxes? Did you have guaranteed hours with the company?

JACUSTOMER-64d0v5lu- :

Hi Ben,

JACUSTOMER-64d0v5lu- :

I was paid through a

JACUSTOMER-64d0v5lu- :

payment clearing agency called exchequer who the agency appointed to me.

JACUSTOMER-64d0v5lu- :

I would fill out agency timesheets every week for a company manager to sign then submit to the ageny.

JACUSTOMER-64d0v5lu- :

Tax wise I set up a limited company and submitted tax returns through an accountant. I did have a guaranteed 40 hrs per week

JACUSTOMER-64d0v5lu- :

and have done this for the past three years except for holidays / illness etc.

JACUSTOMER-64d0v5lu- :

last year (july 2013) I wound up the company and am effectively now a sole trader. regards mike

JACUSTOMER-64d0v5lu- :

The relationship I have is with my agency and the construction company, does the method the money gets to me and how my taxes are paid effect the workings of the agency workers act? regards

JACUSTOMER-64d0v5lu- :

mike

Ben Jones :

Hi, thanks for getting back to me. Your rights will largely depend on your employment status. You may have been working through an agency but that does not automatically make you an ‘agency worker’ for the purposes of the Agency Workers Directive. There are other employment arrangements available where an agency could be involved but the workers would not be classified as agency workers as per the definition of the AWR.

Under the AWR, an "agency worker" is defined as an individual who satisfies the following conditions:

  • Is supplied by a temporary working agency (TWA).
  • To work temporarily for and under the supervision and direction of a hirer.
  • Has a contract with the TWA which is either:
    • a contract of employment with the TWA; or
    • any other contract to perform work and services personally.

However, if you are genuinely self employed you would not be protected under the above definition. The AWR Guidance indicates that an individual providing services through their own personal service company who manages themselves and can provide a substitute will fall outside of the scope of the AWR 2010. However, simply putting earnings through a limited company for tax reasons would not in itself put individuals beyond the possible scope of the AWR 2010.

As you can see it is not a straight forward situation and your rights would very much depend on the actual employment arrangement you had in this situation. If you meet the criteria for being an agency worker and do not fall within the exceptions that apply to self employed workers you would be entitled to holiday pay and as long as you have never received any you can treat this as a continuous underpayment of holidays and can make a claim in the employment tribunal within 3 months of the last failure to pay you. Obviously this deadline will keep on shifting every time a payment is due but you are not paid.

Hope this clarifies your position?

JACUSTOMER-64d0v5lu- : Hi Ben,
JACUSTOMER-64d0v5lu- : thanks for the response, I believe I fall under the awr 2010 as I work for and under the supervision of the hirer, I use their equipment and email etc. and cannot send in a substitute. I will look into a contract with the agency.
JACUSTOMER-64d0v5lu- : my last question is about clarifying the 3 months re: employment tribunal. Can I claim the holiday pay for the last 3 years, say next week, if no payment of the full amount is made after 3 months I then go to the employment tribunal?.
JACUSTOMER-64d0v5lu- : this is very much like the ir35 rules, but working it in reverse to suit holiday pay etc,. Then if the inland revenue come knocking you reverse it again to claim your a consultant etc.
JACUSTOMER-64d0v5lu- : regards
JACUSTOMER-64d0v5lu- : mike
Ben Jones :

Yes you can - the key is that there must have been an unbroken 'series' of non-payments. In that case you can claim as far back as the series go. However, if at some point you were paid the correct holiday then the series would have been interrupted and once 3 months have passed from that date you could only claim for the non-payments from that date onwards

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Expert:  Ben Jones replied 2 years ago.
Hello Mike, could you please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this – this is needed so I can either keep the question open or close it if no further advice is required? Thank you

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