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

I’ve been an agency worker at a company and have been offered a permanent position. I am currently six weeks pregnant and I’m unsure if I will be eligible for SMP or whether I will need to apply for MA instead. I’d really like to know if I can count my fixed term contract period as continuous employment to enable me to claim SMP.

My contract for services with the agency states the following: “For the avoidance of doubt, the agency worker is not an employee of employment business although the employment business is required to make the deductions from the agency worker’s pay. These terms shall not give rise to a contract of employment between the employment business and the agency worker, or the agency worker and the Hirer. The agency worker is supplied as a worker, and is entitled to certain statutory rights as such, but nothing in these terms shall be construed as giving the agency worker rights in addition to those provided by statute except where expressly stated.”

Having spoken to a different organisation, who couldn’t give me a firm answer due to ‘ambiguity in the law’, they recommended I check in the contract the relationship between me, the agency and the end-user company in this case. They said if there is evidence that there is a contract between myself and the end-user, I should be entitled to SMP. Could I have your advice on this based on the relationship explained in the contract as above?

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 15th 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 15th 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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