Transferring from agency worker to employee: do I get SMP?

SMP is payable to a woman who is or has been an employee and who satisfies the conditions of eligibility based on her length of service and her average earnings. The definition of employee for the purposes of an ‘employee’ for SMP purposes is slightly wider than the usual definition of an employee and agency workers will be treated as employees for SMP purposes where the following conditions can be met:

–       The worker personally provides services to the end client;

–       The services are supplied by or through the agency under the terms of an agency contract;

–       The worker is subject to (or has the right of) supervision, direction or control, as to the manner in which the services are provided,

and

–       Remuneration is receivable by the worker (from any person) in consequence of providing the services.

I am unclear as to the nature of the services provided, but agency workers who work for the end client as an actor, singer, musician, entertainer, in fashion, photographic or artist’s model as well as those who provide services in their own home or at other premises which are neither controlled or managed by the client nor prescribed by the nature of the services are all excluded from the entitlement to SMP.

If the above conditions are satisfied, the agency is normally treated as the employer and is liable for any SMP that is due.  However, you have stated that the end user has asked you to become a permanent employee in September and therefore the agency will not be liable.  You will then enter a separate contract of service with the end user.  To qualify for SMP, an employee must have been employed for a continuous period of 26 weeks as at the 15^th week before the Expected Week of Confinement (EWC). Therefore it may be the case that your new employer will argue that you do not have sufficient continuous service to qualify as you will effectively have started a new job.  As the change is before the 15^th week before your baby is due, unfortunately, you are unlikely to be entitled to Statutory Maternity Pay from either the agency or the new employer.

*Samantha Tanney assisted in answering this question.

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