The landscape of modern employment in England and Wales is increasingly diverse. From permanent staff and fixed-term contractors to the growing number of people working through agencies, the “workforce” is no longer a monolithic block. When a business changes hands, the Transfer of Undertakings (Protection of Employment) Regulations, or TUPE, usually provides a robust safety net. However, for those who are not directly employed by the business being sold, the legal waters become significantly murkier.
At Blackstone Solicitors, we frequently receive enquiries from agency workers who find themselves in the middle of a corporate acquisition. They often feel like the “forgotten” part of the team, watching as permanent colleagues are consulted and protected while their own future hangs in the balance. Understanding your rights as an agency worker during a TUPE transfer is essential to ensure you are not unfairly sidelined. This article explores the nuances of the law, the specific protections available, and where the boundaries of TUPE are drawn for the temporary workforce.
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The Fundamental Question: Who is an “Employee”?
To understand whether TUPE protects you, we must first look at how the regulations define who is covered. TUPE is designed to protect “employees.” Under the regulations, an employee is defined as someone who works under a contract of service or apprenticeship. This definition is broader than that used in some other areas of employment law, but it still requires a direct contractual relationship between the worker and the employer being transferred.
This is the primary hurdle for agency workers. In a typical agency arrangement, the worker has a contract with the employment agency, not the client business where they actually perform the work. Because the direct employer (the agency) is not the entity being sold or transferred, the core protections of TUPE- such as the automatic transfer of terms and conditions – generally do not apply to the agency worker.
The General Rule: Agency Workers are Excluded
In the vast majority of cases in England and Wales, if a company is bought by another business, the agency workers assigned to that company do not “transfer” to the new owner under TUPE. Their contract remains with the agency. The new owner of the business is under no legal obligation to continue using those specific agency workers or to honour the rates of pay they were receiving.
The agency worker’s position is essentially a commercial one. The contract is between the agency and the client. If the new owner decides they no longer need agency support, or if they prefer to use a different agency, they can simply terminate the commercial agreement. For the worker, this often feels like a dismissal, but in the eyes of the law, it is the termination of a business-to-business service.
The “Employee by Conduct” Exception
While the general rule is exclusion, the law is never entirely black and white. At Blackstone Solicitors, we always investigate whether an agency worker has, over time, become a de facto employee of the client business.
If an agency worker has been with the same client for many years, is fully integrated into the team, and is treated in every way like a permanent member of staff, an Employment Tribunal might look past the “agency” label. If the court finds that there was an implied contract of employment between the worker and the client, then TUPE protection would suddenly apply.
Factors that might suggest an implied contract include:
The client business, rather than the agency, handles all disciplinary and grievance matters.
The worker has been with the client for a prolonged period without any breaks.
The worker is paid directly by the client (though this is rare).
The client business provides all equipment, training, and uniforms.
Proving an implied contract is a significant legal challenge, but it is a vital avenue for long-term “temps” who find their livelihoods threatened by a business sale.
The Right to Information and Consultation
While agency workers may not have the right to transfer under TUPE, they do have a specific and often overlooked right to be informed and consulted. This is a relatively recent addition to the law, introduced to bring the UK in line with European directives.
Under Regulation 13 of TUPE, the employer who is transferring the business must provide information to the representatives of their own employees about the agency workers they are currently using. Specifically, they must disclose:
The number of agency workers working for the transferor.
The parts of the business in which those agency workers are operating.
The type of work those agency workers are carrying out.
This requirement was designed to ensure that the permanent staff and their unions have a clear picture of the “total workforce” and how the transfer might affect the use of temporary labour in the future.
What if the Employer Fails to Disclose This?
If an employer fails to provide this information about agency workers to the employee representatives, it is a breach of the TUPE regulations. This can lead to a “protective award” being made by an Employment Tribunal, which can be as much as 13 weeks’ pay per affected employee. While this money goes to the permanent staff whose reps were not consulted, it demonstrates that the law takes the presence of agency workers seriously during a transfer.
The Agency Workers Regulations (AWR) 2010
Although TUPE itself may offer limited protection, the Agency Workers Regulations (AWR) provide a different layer of security that remains relevant during a business transfer.
Under the AWR, once an agency worker has completed 12 weeks of service in the same role with the same client, they are entitled to the same “basic working and employment conditions” as if they had been recruited directly. This includes:
Pay (including commission and bonuses linked to performance).
Working time and rest periods.
Annual leave.
If a business transfer occurs, and the new owner continues to use the same agency worker in the same role, the “12-week clock” does not reset. The worker’s rights under the AWR continue with the new owner. If the new owner tries to reduce the agency worker’s pay to a level below that of the permanent staff, they may be in breach of the AWR, even if they are not in breach of TUPE.
Service Provision Changes: A Different Kind of TUPE
Many agency workers are involved in “Service Provision Changes.” This happens when a client business decides to stop doing a task in-house and hires a contractor (outsourcing), or when they move a contract from one provider to another (retendering).
In these scenarios, if the agency worker is part of an “organised grouping of employees” whose principal purpose is to carry out the activities for that specific client, they may have a stronger argument for TUPE protection. For example, if an agency provides a dedicated team of five workers who only ever work on the cleaning contract for a specific office block, and that cleaning contract moves to a new company, those workers might transfer to the new company under TUPE.
At Blackstone Solicitors, we meticulously examine the “grouping” of workers. If the agency worker is frequently moved between different clients, they are unlikely to be protected. If they are “dedicated” to one client, their chances of a successful TUPE transfer increase significantly.
What to Do if You are an Agency Worker Facing a Transfer
If you learn that the business where you are currently placed is being sold, you should not wait for the new owners to contact you. Proactivity is key to protecting your position.
Contact Your Agency: Ask them for a formal update on how the business sale affects their contract with the client. Your agency has a vested interest in keeping you in the role so they can continue to earn their commission.
Gather Your Documents: Ensure you have copies of your contract with the agency and any communications that show how long you have been with the current client.
Check Your AWR Status: Determine if you have passed the 12-week qualifying period. If you have, make sure you are receiving the correct “comparable” pay.
Identify Your “Grouping”: If your work is entirely dedicated to the client being transferred, ask the agency if they consider you to be part of the “transferring group” under the service provision change rules.
Seek Independent Legal Advice: This is the most critical step. The interaction between agency law, the AWR, and TUPE is incredibly complex. A firm like Blackstone Solicitors can provide the clarity you need.
Why Choose Blackstone Solicitors?
Blackstone Solicitors is a firm built on tenacity and technical expertise. Serving clients across England and Wales, we have a deep understanding of the shifting nature of the UK workforce. We believe that everyone deserves fair treatment at work, regardless of their contract type.
Our employment law specialists can help agency workers by:
Assessing Employment Status: Evaluating whether you have a claim to be an “implied employee” of the client business.
AWR Claims: Pursuing compensation if your new employer has failed to match the pay and conditions of permanent staff.
TUPE Disputes: Representing you in the Employment Tribunal if you have been excluded from a transfer that should have included you.
Negotiating with Agencies: Ensuring that your agency is fulfilling its duties to protect your placement during a corporate transition.
The Practical Reality of Business Sales
In many high-profile acquisitions, the new owner wants to keep the agency workers. They provide continuity, they already know the systems, and they are essential for a smooth transition. In these cases, the “protection” comes not from the law, but from your value to the business.
However, you should never rely on goodwill alone. Business owners change, and priorities shift. Having a clear understanding of your legal rights ensures that if the new owners decide to make cuts, you are not the first and easiest target simply because of your agency status.
Conclusion: A Complex But Not Hopeless Position
So, are you protected by TUPE if you are an agency worker? In the strictest sense, usually no. The law in England and Wales primarily reserves the automatic transfer of contracts for those with a direct employment relationship.
However, as we have explored, this is not the end of the story. Through the Agency Workers Regulations, the right to be informed and consulted, and the potential for implied employment contracts, agency workers have more leverage than they might realize.
At Blackstone Solicitors, we are committed to ensuring that no worker is left in the dark during a business transfer. Whether you are a long-term contractor or a newly placed agency worker, we provide the robust, clear, and expert legal support you need.
If you are concerned about your future following a business sale in England or Wales, contact Blackstone Solicitors today. We will help you navigate the complexities of TUPE and the AWR to ensure your career remains on track. Don’t let a corporate merger leave you without a voice; let us provide the expert representation you deserve.
Frequently Asked Questions
Does the 12-week AWR clock reset if the company is bought? No. As long as you stay in the same role, the time you spent with the old employer counts towards your 12-week qualifying period with the new employer.
Can I be fired without notice during a TUPE transfer? If you are an agency worker, your notice period is dictated by your contract with the agency. The client business can usually end the placement at any time, but the agency must still honour your contractual notice.
Is it worth joining a union as an agency worker? Yes. Unions can provide representation during the consultation phase of a TUPE transfer, ensuring that the impact on the temporary workforce is discussed by the management.
What if my agency is the one being bought? If your employment agency is bought by another company, TUPE will apply to your contract with the agency. You will transfer to the new agency owner on your existing terms and conditions.
How to Contact Our Employment Law Solicitors
It is important for you to be well informed about the issues and possible implications of Employment Law. However, expert legal support is crucial in terms of ensuring a positive outcome to your case.
To speak to our Employment law solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Please visit our website to see all the Employment Law services we offer: https://blackstonesolicitorsltd.co.uk/employment-law-services/
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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