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The short version
If you're working through an agency on a construction site, you're not rightless. You get some protections from day one. After 12 continuous weeks in the same role with the same hirer, you're entitled to the same basic pay and conditions as someone hired directly. Most agency workers in construction have no idea this exists -- and most agencies aren't rushing to tell them.
Why this matters in construction
Construction runs on agency labour. Scaffolders, labourers, machine operators, banksmen, traffic marshals -- agencies supply thousands of them to sites every week. Many of those workers stay on the same site, in the same role, for months at a time.
Under the Agency Workers Regulations 2010 (AWR), after 12 weeks in the same role with the same hirer, those workers are legally entitled to the same pay and basic conditions as someone the company hired directly. That means if the company's own labourers earn £15 an hour and the agency labourer doing the same work earns £12, the agency worker's rate should come up to £15 after week 12.
That's not optional. That's the law. And since the Swedish derogation -- the old loophole that let agencies dodge pay parity by giving workers a permanent contract with the agency instead -- was abolished on 6 April 2020, there's no way round it.
Who counts as an agency worker?
You're an agency worker under the AWR if:
- You have a contract with a temporary work agency (the agency)
- The agency supplies you to work temporarily for a hirer (the company on site)
- The hirer supervises and directs your work
It doesn't matter what the contract calls you. If the agency places you on a site and the main contractor or subcontractor directs your work, you're covered.
You are usually classed as a worker rather than an employee of the agency. That means you already get basic worker rights (National Minimum Wage, Working Time Regulations, holiday pay) from the start. The AWR adds extra protections on top.
Day one rights -- from your first shift
You don't need to wait 12 weeks for everything. From the very first day of any assignment, the hirer must give you:
1. Access to collective facilities and amenities
Whatever the hirer provides to their own staff, you get too. That includes:
- Canteen or food and drink facilities
- Car parking
- Transport services (site buses, pick-ups)
- Toilet and shower facilities
- Staff common room or rest area
- Prayer room
- Mother and baby room
- Childcare facilities (subject to the same waiting lists as direct staff)
The hirer can only refuse you access if they can objectively justify it -- not just because you're agency.
2. Information about job vacancies
The hirer must tell you about any permanent or fixed-term vacancies within their organisation at the same time as they tell their own staff. This is supposed to give you a fair shot at getting taken on directly.
In construction terms: if the main contractor has a canteen, drying room, or car park on site, you get access from day one -- same as their direct employees. If they're advertising for permanent roles, you should be told. In practice, many hirers don't do this properly. Now you know you can ask.
12-week rights -- equal treatment
After 12 continuous calendar weeks in the same role with the same hirer, you are entitled to the same basic working and employment conditions as if you'd been recruited directly by the hirer to do the same job. This is called equal treatment.
Equal treatment covers:
- Pay -- the same basic pay, overtime rates and shift allowances as a comparable direct recruit
- Working time -- the same rules on duration of working time, night work, rest periods and rest breaks
- Holiday entitlement -- the same annual leave entitlement (at least 5.6 weeks, but if direct staff get more, you get more too)
- Access to collective facilities -- already a day-one right, but continues
What equal treatment does NOT cover:
- Occupational sick pay schemes
- Redundancy pay
- Occupational pension schemes (though you may be auto-enrolled through your agency)
- Maternity/paternity pay beyond statutory
- Notice periods beyond statutory
- Profit-sharing or share schemes
The key word is "comparable." The hirer has to look at what a direct employee doing the same or broadly similar work receives. If the hirer has nobody doing comparable work directly, they have to look at what they would pay if they did recruit someone directly.
How the 12-week qualifying period works
This is where it gets technical -- and where some agencies and hirers try to game the system.
The basic rule: you must work in the same role with the same hirer for 12 continuous calendar weeks. You don't have to work every day of every week -- you just need to do some work in each of those 12 calendar weeks.
It doesn't matter which agency supplies you. If Agency A places you on a site for 8 weeks and then Agency B places you on the same site in the same role, those weeks add up. The clock follows the role, not the agency.
Breaks that PAUSE the clock (your weeks are preserved):
The qualifying period pauses -- but your accrued weeks are kept -- if you have a break because of:
- Any reason, as long as the break is 6 calendar weeks or less and you return to the same role with the same hirer
- Sickness or injury -- up to 28 weeks
- Pregnancy, childbirth or maternity -- from the start of the pregnancy to 26 weeks after birth (or when you return, if earlier)
- Annual leave or other leave you're entitled to
- A workplace closure (e.g. Christmas shutdown)
- A strike or industrial action at the hirer's workplace
- Jury service -- up to 28 weeks
Breaks that RESET the clock to zero:
Your qualifying weeks are wiped and you start again from scratch if:
- You have a break of more than 6 weeks for a reason not listed above
- You return after more than 28 weeks of sickness or jury service
- You start a new assignment with a different hirer
- You start a substantively different role with the same hirer
"Substantively different" is a high bar. Moving from labouring to labouring on a different part of the same site is not a new role. For a role to be genuinely substantively different, most of these factors need to change:
- Different skills or competences used
- Different pay rate
- Different location
- Different line manager
- Different working hours
- Additional or new training required
- Different equipment involved
If the agency tells you in writing that the role has substantively changed, the clock resets. But simply moving you 50 metres down the site to do the same work under a different supervisor doesn't cut it.
Anti-avoidance -- they can't just shuffle you around
The AWR includes specific anti-avoidance provisions. If the most likely reason for the way your assignments are structured is to prevent you from reaching 12 weeks -- or to stop your equal treatment rights continuing after 12 weeks -- you're entitled to be treated as if the qualifying period has been completed.
Example from the regulations: Two companies in the same group swap agency workers every 11 weeks to stop anyone hitting 12. Once each worker completes the second assignment, they're entitled to equal treatment from the end of the first week of that second assignment.
In construction terms: if you've been on and off the same site for months, doing the same work, with short gaps that always seem to land just before week 12 -- that pattern is exactly what the anti-avoidance rules exist to catch. If you suspect this is happening, raise it with your agency in writing and consider contacting ACAS.
Who is responsible for what?
This is important because agencies and hirers often try to point the finger at each other:
| Obligation | Who is responsible? |
|---|---|
| Day one rights (facilities, vacancy info) | The hirer -- they control the site and the facilities |
| Equal treatment after 12 weeks (pay, conditions) | Both -- the agency is primarily liable for pay, but the hirer must provide the information about comparable terms. If the hirer gives the agency wrong information, the hirer can be liable |
| Anti-avoidance | Both -- neither can structure assignments to dodge the rules |
In practice, the agency sets your rate and pays you. But they can only pay you what they know about -- and the hirer is legally obliged to tell the agency what a comparable direct recruit would earn. If the hirer refuses to provide that information, or provides false information, the liability can shift to them.
The Swedish derogation -- gone since April 2020
Before April 2020, there was a loophole called the Swedish derogation (also called a "pay between assignments" contract). Agencies could avoid equal pay after 12 weeks by giving you a permanent contract with the agency itself, including pay between assignments. In exchange, they didn't have to match the hirer's rates.
This was used heavily in construction and other blue-collar sectors. An estimated 130,000 workers were on these contracts at any one time.
The Taylor Review recommended scrapping it. The Government abolished it on 6 April 2020. It no longer exists. Any agency still claiming they don't have to match rates because of a "contract with the agency" is either out of date or taking the piss.
What's coming -- Employment Rights Act 2025 and agency workers
The Employment Rights Act 2025 extends new rights to agency workers, though the detail is still being worked out through consultation and secondary legislation:
-
Guaranteed hours: The Act creates a right for zero-hours and low-hours workers to be offered a contract reflecting the hours they actually work. This will extend to agency workers -- the obligation to offer guaranteed hours is expected to fall on the hirer, with agencies responsible for certain notice and payment obligations.
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Shift notice and cancellation pay: Agency workers will gain rights to reasonable notice of shifts and compensation where shifts are cancelled, moved or curtailed at short notice. Both the hirer and the agency will share responsibility.
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Timing: These measures have been deferred to 2027, with consultations running through 2026 on reference periods, thresholds and how duties are split between hirers and agencies.
This hasn't landed yet. But the direction is clear -- agency workers are getting more protections, not fewer. If you're an agency worker on a construction site, your position is getting stronger over the next two years.
What to do if you think you're being short-changed
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Count your weeks. Write down when you started, which site, which role, and any breaks. If you've done 12 calendar weeks in the same role with the same hirer, you're entitled to equal treatment.
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Ask the agency what a comparable direct employee earns. They should know -- the hirer is required to tell them. If they dodge the question, that tells you something.
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Check your payslip against what you know. Talk to directly employed workers doing the same job. If they're earning more than you after your 12 weeks, you have a legitimate issue.
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Raise it with the agency first, in writing. Put it in an email: "I've completed 12 weeks in the same role with [hirer]. Under the Agency Workers Regulations 2010, I'm entitled to equal treatment on pay and conditions. Please confirm what rate applies." Keep a copy.
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If the agency won't act, talk to ACAS. Free, confidential, and they handle AWR disputes. Call 0300 123 1100 or use their early conciliation service online.
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Watch for the shuffle. If your assignment mysteriously ends at week 11 and you're offered a "different" role that looks identical, or you're moved to a sister company for no clear reason -- document it. That's exactly the pattern the anti-avoidance rules target.
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Know the time limits. Tribunal claims under the AWR must be brought within three months less one day of the treatment you're complaining about. Don't wait.
What to do next
- Count your weeks on your current assignment -- write down when you started, which site, which role, and any breaks.
- Ask your agency what a comparable direct employee earns doing the same job -- they should know, because the hirer is required to tell them.
- Check your payslip against what directly employed workers on the same site are getting after your 12 weeks.
- If something looks wrong, raise it with your agency in writing first and keep a copy.
- Watch for the shuffle -- if your assignment keeps ending just before week 12, document the pattern.
Sources
- Agency Workers Regulations 2010 (SI 2010/93), particularly regulations 5, 6, 7, 9, 12, 13
- Agency Workers (Amendment) Regulations 2019 -- abolition of the Swedish derogation (effective 6 April 2020)
- HMRC / BIS guidance: Agency Workers Regulations 2010 -- Guidance (published by BEIS)
- ACAS guidance: Agency workers -- your employment rights (day one and 12-week rights)
- GOV.UK: Your rights as an agency worker -- equal treatment
- Employment Rights Act 2025 (Royal Assent 18 December 2025) -- guaranteed hours and scheduling provisions for agency workers (expected commencement 2027)
- Taylor Review of Modern Working Practices (2017) -- recommendation to abolish Swedish derogation
This guide is for information only. It is not legal advice. If you need advice on your specific situation, speak to ACAS, a union, or a solicitor who deals with employment law. Do not use this page as a legal defence.
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