‘The happening of bad things at work is not enough — UK agency workers’ voices need to be heard by their host employers too’

Nigel Pitchford of Leeds Trinity University presents a paper on workplace vulnerability.

Introduction

With a new Labour government installed in Westminster, workplace rights have seemingly moved up the political agenda; yet, even with the UK’s previous administration an important piece of law (housed within regulations) was implemented in 2020 that required workers – for the first time – to be informed, through their key contractual terms, of how to raise their individual grievances.

Yet this measure, brought into force during the first Covid lockdown, has exposed the difficulties faced by agency workers in bringing complaints within a tripartite relationship: the hirer (or ‘host’) through their daily control will determine the worker’s deployment, whilst wielding significant power over the worker, through the agency, such as a recommendation of suspension from work, for example.

However, given the contractual position of the parties, these hosts, even though de facto employers, generally have no responsibility to deal with those grievances that originate from their workplaces as these are the primary responsibility of the agency alone, the de jure employer.

Of course, it is well established that hosts are not immune from legal responsibility, most notably in discrimination law; however, for this route to be used for a disgruntled agency worker against their host for the happening of bad things at work, there must be a link to a protected characteristic.

Moving on to process, agency workers can be accompanied to their hosts’ hearings; yet there is an obvious lacuna here: the new right to complain amounts to nothing if hosts through their own grievance procedures are allowed to exclude agency workers from their scope, as they so often do.

Therefore, this article proposes a new legal framework to require hosts to hear grievances from their agency workers, illustrating it with the recent case of Arnost (Arnost v HMRC [2025] 2300882/2023; the decision was made in 2023 and published in 2025).

The difficulties for agency workers of using the current legal framework for their workplace grievances

Agency workers are the most vulnerable cohort of any workforce due to their tripartite relationship: the hirer as principal (referred to as ‘host’ for the purpose of this article) through their day-to-day control will determine the worker’s deployment, whilst the nature of the relationship also allows the host to legally exert influence over the employment conditions and the linked rights of agency workers as exemplified in the Bray case (Bray v Monarch Personnel Refuelling (UK) Ltd [2013] ET 1801581/2012).  

However, given the contractual position of the parties, these hosts, even though de facto employers, generally have no legal responsibility for those grievances that originate from their workplaces as such grievances are the responsibility of the agency alone, the de jure employer. Indeed, Arnost, a recent discrimination decision, clearly distils the difficulties faced by agency workers who are sometimes within a relationship of four parties [4]–[6].  

In 2010, the Equality and Human Rights Commission (EHRC) concluded, inter alia, that to prevent the abusive behaviours that were found, workers should be able to raise their concerns with their agency or workplace.

The EHRC referred to agency workers not having the same rights as employees, and their recommendation was that workers should have access to a grievance procedure. However, the EHRC rather surprisingly avoided any reference to the legislative lacuna for workers at the time: the right to be informed of a grievance process.

This lacuna was eventually filled, a decade later, by secondary legislation (through regulations) published in March 2019 and implemented in April 2020, during the UK’s first Covid lockdown: the Employment Rights (Miscellaneous Amendments) Regulations 2019, SI 2019/731; and the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018, SI 2018/1378 (‘the 2020 Regulations’). 
These 2020 Regulations require workers to be informed for the first time, via their written statement of employment particulars, of grievance procedures and these should now be drafted to have them within scope for their individual workplace complaints.

Interestingly, the statutory right to be accompanied at a grievance meeting was introduced two decades before workers even had the right to know, and thereby, initiate a grievance process (Employment Relations Act 1999). This right extends to agency workers who are allowed to be accompanied to their hosts’ hearings.

Yet, there is a glaring gap here: this obviously useful workplace right amounts to nothing if hosts through their grievance procedures are permitted to exclude agency workers from their scope. For example, in Arnost the host’s policy (HMRC’s “upholding our standards of conduct policy”) only applied to their employees, not their agency workers, and “the Equality Act” did “not alter this” [46].  

Indeed, in this race (direct) discrimination case, although the tribunal noted the power inherent in being a host, it came with no responsibility to hear a worker’s grievance:

“Whilst it may have been fairer to have listened to the [worker’s] version of events, and sought her views on what happen[ed] before making a recommendation that her suspension continue, the [host] was not obliged to do so. The [host] was entirely justified in delegating this matter to the [worker’s] employer, Brook Street.” [48 (emphasis added)]

The tribunal added “a further important point to note”, namely: 
“discrimination does not occur just because less favourable treatment – bad things, in simple terms – happen to someone, and that person has a protected characteristic. The less favourable treatment must be because of that protected characteristic”. [53 (emphasis added)]

Therefore, the default position of a typical host would be to simply delegate the complaint to the agency worker’s de jure employer, as the tribunal reiterated in its closing paragraph:

“The Tribunal is satisfied that the [worker’s Eastern European] race was not an influencing factor on the [host’s] decision to not listen to her version of events and to place the investigation in the hands of Brook Street [the agency].” [55]

Even though the default position is likely to be the immediate and most obvious response to an agency worker’s grievance, it is important to highlight that a host can be required to answer claims of discrimination within a tribunal setting even though a contractual relationship is absent between the parties, most notably illustrated in the leading case of Pegg (LB of Camden v Pegg [2012] UKEAT 0590/11).

Of course, any discrimination on the part of the host can only commence with the involvement of the host’s employees (or workers); for example, in Arnost the potential trigger was when an employee of the host sent an email to the agency “which concluded with the line ‘I recommend that at this stage – [the agency worker] be stood down tonight until its [sic] fully investigated’”. [34]–[35]

All of this means that overall issues of fairness in how the agency worker was (mis)treated by the host can be ignored. For more is required, specifically this: not hearing a grievance must amount to discrimination based on a protected characteristic.

Potential reforms to facilitate the resolution and inclusion of grievances from agency workers

UK legislation is already available for a future government to make regulations that can confer statutory employment rights on those who do not have them (Employment Relations Act 1999, s.23, as amended by the Employment Relations Act 2004, s.39). For over two decades, this significant power (a so-called ‘Henry VIII’ measure) has been available for governments to deem the employer for those in precarious employment to improve their workplace rights, a power especially relevant for agency workers.

It is submitted that this provision could be used to confer on agency workers the right to bring a grievance to their host employer in addition to their contractual employer, as the workplace facts may demand. As such, this would require a change to the 2020 Regulations with the incorporation of additional words to implement this proposed reform, for example:

For the purpose of hearing a grievance an agency worker’s, or an agency employee’s, employer is whichever of the agent or the principal to the extent that either is potentially responsible for the grievance, as nominated by the worker or employee. Once nominated, the other, being either the agent or the principal, is discharged from the responsibility for the resolution of the grievance within their workplace.

Although this is a ‘one bite’ at a workplace grievance, legal liability, as in discrimination cases today, would still remain an option against either the host or agency, as it can be difficult to attribute responsibility within such a complex arrangement as in Arnost where there were four parties.  

Of course, the type of grievance itself would, primarily, determine where fault lies and who is the functional employer. Therefore, unpaid wages, for example, would be the responsibility of the contractual employer whereas discrimination within the de facto workplace, by the host’s worker(s) or employee(s), would be part of the host’s responsibility.  
Currently, although agency workers are able to bring tribunal claims against their hosts, they are also in a contradictory position of being unable to generally raise a grievance prior to embarking on such litigation.

As always, political will is needed for change

During an exchange of correspondence, following a contested freedom of information request with the Department for Business, Energy and Industrial Strategy (which existed until 2023), an opportunity was provided to outline this article’s reform proposal with two officials, one of whom had the interesting job as ‘Policy Lead Official for Employment Status’.

The difficulty of workers having to raise grievances from their de facto workplaces with their agency employers who are not then required to raise them with their clients, the host (de facto) employers, was shared with the officials using powerful testimony and evidence from the EHRC.

Following some initial reluctance based on contractual obligations inter partes, this official accepted, in principle, given the especial vulnerability of agency workers, the thesis of shared responsibility that would be discharged by either the host or the contractual employer with nominated responsibility for any particular grievance raised.  

Of course, such a reform would require a willingness to legislate by the new Labour government. Indeed, the words of Charles J in Montgomery resonate as much today as they did some 25 years ago:

“it seems to us that it would be sensible for the relevant Government Departments and Parliament to give further consideration to the position of employment agencies, their clients and the individuals who work for such clients on the introduction of the agency” (Montgomery v Johnson Underwood [2000] UKEAT 509/98/1804, [9 (emphasis added)]).

Written by Nigel Pitchford, PhD, Leeds Trinity University. Nigel completed his doctorate in 2022 and the thesis’ findings were presented to the Work and Equalities Institute’s Conference, University of Manchester, in January 2023, and to the Society of Legal Scholars’ (SLS) Annual Conference in June 2023. This research was inspired, to some degree, by the harsh realities of working in England’s post-16 education system for many years whilst representing college teachers as an elected union representative. Recently, Leeds Trinity University provided financial support for research into those who are legally vulnerable when at work, and the essence of this article was delivered to the SLS Annual Conference in September 2025.