If I work through an agency, who is my legal employer — the agency or the company I work at?

In a typical agency arrangement your legal employer (or at least the party you have a contract with) is the agency, not the end-user company you are placed with day to day. The agency signs you up, pays you and supplies you to the hirer. The hirer directs your daily work but usually has no contract with you. Who directs your work and who is your employer in law are two different questions, which is what makes agency-worker claims difficult.

I have worked for the same hirer for over 2 years through an agency — does that make the hirer my employer?

Usually no. In James v London Borough of Greenwich [2008] EWCA Civ 35 the Court of Appeal held that the mere passage of time does not create an implied contract of employment between an agency worker and the end-user, even where the placement lasts far longer than expected. To imply such a contract it must be necessary to explain the business reality, and there must be mutuality of obligation. Length of service answers the separate question of the qualifying period, not the question of who your employer is.

Who should I name as the respondent in an employment tribunal claim as an agency worker?

It depends on the claim. For unfair dismissal or redundancy you must be an 'employee' with the qualifying period, and the respondent is usually the agency (your employer) — the hirer only if a tribunal finds an implied contract with it. For discrimination or harassment you can name both the agency (under Equality Act 2010 s.39) and the end-user (under s.41, which covers contract workers). For wages or holiday pay you sue your employer, usually the agency or umbrella company. When in doubt, name both the agency and the hirer as respondents and let the tribunal decide.

Can I claim unfair dismissal against the agency or the hirer?

Only if you are an 'employee' (not merely a 'worker') and you meet the qualifying period (2 years as of 2026, reducing to 6 months from 2027 under the Employment Rights Act 2025). Many agency workers are classed as the agency's 'worker' under a contract for services — often with a substitution clause and no mutuality of obligation — and so cannot bring unfair dismissal against either party. If you are an employee of the agency, the agency is the respondent; the hirer is only liable if an implied contract of employment with it is established, which is rare.

Can I bring a discrimination claim against the company I am placed with, not just the agency?

Yes. Section 41 of the Equality Act 2010 makes it unlawful for a 'principal' (the end-user that uses contract workers supplied by an agency) to discriminate against, harass or victimise those workers in relation to the terms on which it allows them to do the work. You are separately protected against your agency-employer under section 39. So in a discrimination claim you can name both the agency and the end-user as respondents — and you generally should, rather than naming the agency alone.

What is the difference between the AWR 12-week rule and the 2-year unfair dismissal rule?

They are two separate thresholds. Under the Agency Workers Regulations 2010, after 12 weeks in the same role you are entitled to equal treatment on basic pay and working conditions with comparable directly-employed staff (and you have day-one rights to shared facilities and vacancy information from the hirer). The 2-year period (reducing to 6 months from 2027) is the qualifying period for ordinary unfair dismissal, which also requires you to be an 'employee'. Meeting the 12-week AWR threshold does not give you unfair dismissal rights.

What is the time limit to bring an agency-worker claim, and what if I name the wrong party?

Employment tribunal claims generally must be brought within three months less one day of the event (such as the dismissal or discriminatory act), and you must first go through ACAS Early Conciliation, which pauses the clock. Because employer identity is often unclear in agency arrangements, the safest course is to name both the agency and the end-user (and any umbrella company) as respondents and plead in the alternative, so you do not lose the claim by suing the wrong party or discover the error after the time limit has passed.

An umbrella company pays me — does that change who I sue?

It can. Where an umbrella company is inserted into the chain, it often becomes your contractual employer and operates PAYE, while the agency only finds you assignments. In that case wage and holiday-pay claims are usually brought against the umbrella company. Discrimination claims can still be directed at the end-user under Equality Act s.41. Watch for unlawful umbrella deductions and bogus self-employment, and keep all payslips and contracts. If the structure is unclear, name the umbrella, the agency and the hirer and let the tribunal sort out responsibility.

Agency Workers (Temporary Work Agency): Who Is My Employer in the UK, and Who Do I Sue at an Employment Tribunal?

📌 Key Takeaways

The tripartite structure: Agency workers usually have a contract with the agency (temporary work agency) and are placed with a hirer (end-user) to work. Your “employer” in law is usually the agency, not the company you actually work for day to day.

⚠️ The direct answer to your question: Working for the same hirer for 2 years does not automatically make that company your employer. The case James v London Borough of Greenwich [2008] EWCA Civ 35 established that the mere passage of time is not sufficient to imply a contract of employment between an agency worker and the hirer — there must be “mutuality of obligation” and something “more”.

Who you name as respondent depends on what you are claiming:

Unfair dismissal / redundancy: You must be an “employee” and meet the qualifying period — the respondent is usually the agency; the hirer is only liable where the tribunal finds an “implied contract” with it (rare).

Discrimination / harassment (Equality Act 2010): You can name both the agency and the hirer — the agency under s.39 (as your employer) and the hirer under s.41 (the “contract worker” provision).

Equal treatment (AWR 2010): Responsibility falls on the agency (pay/basic conditions after 12 weeks) or the hirer (day-one facilities/vacancy information), depending on which obligation has been breached.

Unpaid wages / holiday pay: Sue your employer (usually the agency or umbrella company).

🟢 The golden practical rule: When in doubt about employer identity, name both the agency and the hirer as respondents, pleading in the alternative in your ET1, and let the tribunal determine who your employer is — this avoids suing the wrong party and missing the 3 months less one day time limit.

Qualifying period: As of 2026, ordinary unfair dismissal generally requires 2 years‘ service; from 2027 this reduces to 6 months (Employment Rights Act 2025). See the unfair dismissal guide.

Jurisdiction: England, Scotland and Wales (unified Employment Tribunal system); Northern Ireland has a separate Industrial Tribunal.

Many members of the Chinese community in the UK find work through an agency (temporary work agency) and are placed with a company (the hirer) on a long-term basis. Once a placement is ended or unfair treatment occurs, the most confusing question is: “Who exactly is my employer? I have worked for this company for over two years — when I go to an Employment Tribunal, do I sue the agency or the company I actually work at?”

This is precisely the most complex “tripartite relationship” question in UK employment law. Getting the respondent wrong can result in the entire claim being struck out, and missing the 3-month time limit. This article explains clearly: how an agency worker’s employer is identified, whether working for 2 years makes the hirer your employer, and exactly who to name as respondent for each type of claim (unfair dismissal / discrimination / equal treatment / unpaid wages) — together with the practical strategy of “when in doubt, sue both”. All references include links to legislation.gov.uk and relevant case law.

⚠️ The most common misconception: “I have worked for this company for 2 years, therefore it is my employer, therefore I can sue it for unfair dismissal” — this is wrong. Length of service alone does not in law automatically make the hirer your employer (see Section 3, James v Greenwich).

Principal legal authorities:

Employment Rights Act 1996 (ERA 1996) — s.230 (definitions of “employee”/”worker”), s.94 (right not to be unfairly dismissed), s.108 (qualifying period)
Agency Workers Regulations 2010 — SI 2010/93 (AWR: 12-week equal treatment, day-one rights)
Equality Act 2010 — s.39 (employer liability), s.41 (contract workers / hirer as principal)
Case law (how employee status is decided): Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 497, Nethermere (St Neots) v Gardiner [1984] ICR 612, Carmichael v National Power [1999] UKHL 47, Autoclenz v Belcher [2011] UKSC 41, Pimlico Plumbers v Smith [2018] UKSC 29, Uber v Aslam [2021] UKSC 5, PGMOL v HMRC [2024] UKSC 29
Case law (agency relationship / implied contract): The Aramis [1989] 1 Lloyd’s Rep 213, Montgomery v Johnson Underwood [2001] EWCA Civ 318, Dacas v Brook Street Bureau [2004] EWCA Civ 217, Cable & Wireless v Muscat [2006] EWCA Civ 220, James v London Borough of Greenwich [2008] EWCA Civ 35; [2008] IRLR 302, Tilson v Alstom Transport [2010] EWCA Civ 1308, Muschett v HM Prison Service [2010] EWCA Civ 25, Smith v Carillion [2015] EWCA Civ 209, McMeechan v Secretary of State for Employment [1997] ICR 549
Employment Rights Act 2025 (qualifying period reform from 2027)

1. The Tripartite Structure: You, the Agency, and the Hirer

Agency work typically involves three parties:

Role	Description
You (the worker)	The person providing the labour
Agency (temporary work agency)	The company that contracts with you, pays you, and supplies you to hirers — usually your legal employer (or at least the other party to your contract)
Hirer (end-user)	The company where you actually work and whose day-to-day instructions you follow — but which is not usually your contractual employer

📌 Key point: Who you work for every day, and who directs you, is a different question from who your employer is in law. This is the central difficulty in agency worker claims.

2. What Is Your Employment Status? — Employee / Worker / Self-Employed

Rights under UK employment law depend on status, and different statuses give access to different remedies:

Status	Typical rights
Employee	Fullest protection: unfair dismissal, statutory redundancy pay, maternity rights, etc. (most require the qualifying period to be met)
Worker	Intermediate: National Minimum Wage, paid annual leave, protection from discrimination, AWR equal treatment — but usually no right to claim unfair dismissal
Self-employed	Least protection: mainly contractual remedies plus discrimination rights (in certain circumstances)

Determining “employee” status requires three core elements (case law): mutuality of obligation, control, and personal service (whether you can send a substitute). Many agency contracts state you are a “self-employed worker” and that the agency “may substitute another person at any time” — this often means you are not even an employee of the agency, let alone of the hirer.

📌 Agency workers are frequently classified as the agency’s “worker” (rather than employee). This means you have the right to protection from discrimination, the National Minimum Wage, paid leave, and AWR rights, but you may not have the right to claim unfair dismissal — regardless of who you sue. Identifying your status correctly must come before deciding who to sue.

Case law: how “employee” status is decided

Tribunals look at the reality of the relationship, not the label on the contract. The leading cases:

Case	Principle established
Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 497	The “three conditions” for a contract of employment (MacKenna J): (1) work in exchange for remuneration; (2) a sufficient degree of control; (3) the other terms are consistent with a contract of service — the foundational test
Nethermere (St Neots) v Gardiner [1984] ICR 612	There must be an ”irreducible minimum of obligation” on each side — without it there is no employment
Carmichael v National Power [1999] UKHL 47	Casual “as required” staff had no mutuality of obligation between assignments and so were not employees
Autoclenz v Belcher [2011] UKSC 41	Written terms are only part of the factual matrix; the court finds the true agreement — sham clauses (such as a substitution clause that does not reflect reality, or a “self-employed” label) can be disregarded
Pimlico Plumbers v Smith [2018] UKSC 29	Personal service is key: an unfettered right of substitution is inconsistent with employee / worker status, but a conditional right may not be
Uber v Aslam [2021] UKSC 5	Status is judged by the reality of the relationship and the purpose of the legislation; the “self-employed” label was rejected and the drivers were workers
PGMOL v HMRC [2024] UKSC 29	The latest Supreme Court guidance: mutuality of obligation and control can exist within a single engagement — so even individual assignments may be contracts of employment, despite no obligation to offer or accept future work

📌 Why this matters for agency workers: (1) do not be put off by a “self-employed” label (Autoclenz / Uber — look at the reality); (2) an unfettered substitution clause weakens your status claim (Pimlico); (3) even if you work assignment-by-assignment with no obligation between them, each individual assignment may still be a contract of employment with the agency (PGMOL; see also McMeechan below).

3. The Core Question: Does Working for the Same Company for 2 Years Make It My Employer?

Answer: Usually no.

The Court of Appeal in James v London Borough of Greenwich [2008] EWCA Civ 35 established:

There is no presumed contract of employment between an agency worker and the hirer;
The mere passage of time (even far longer than originally contemplated, year after year) is insufficient to imply a “implied contract of employment” with the hirer;
To imply such a contract it must be “necessary” to do so in order to explain the commercial reality of the tripartite arrangement (the “necessity” test), and there must be mutuality of obligation — in James, the agency could substitute another worker at any time, the hirer had no obligation to provide work, and James had no obligation to attend, so there was no mutuality of obligation and therefore no implied contract, leaving James with no unfair dismissal protection.

Case law development:

Case	Key point
The Aramis [1989] 1 Lloyd’s Rep 213	The origin of the ”necessity” test: a contract is implied only where it is necessary to explain what the parties actually did
Montgomery v Johnson Underwood [2001] EWCA Civ 318	An “employee” requires both control and mutuality of obligation; this agency telephonist was held to be an employee of neither the agency nor the hirer
Dacas v Brook Street Bureau [2004]	Suggested (without deciding) that a long placement might give rise to an implied contract with the hirer
Cable & Wireless v Muscat [2006]	Found an implied contract with the hirer on the specific facts of that case (an exceptional outcome)
*James v Greenwich [2008]*	Corrective authority: time alone does not create an implied contract; necessity and mutuality of obligation are required
Muschett v HM Prison Service [2010]	Agency worker held to be an employee of neither the agency nor the hirer
Tilson v Alstom Transport [2010] EWCA Civ 1308	Even with a high degree of integration into the hirer, there was no implied contract (the worker had previously declined to become a direct employee)
Smith v Carillion [2015] EWCA Civ 209	Reaffirmed that a long placement plus integration is still not enough to imply a contract with the hirer
McMeechan v Secretary of State for Employment [1997] ICR 549	The other side of the coin: an agency worker can be an employee of the agency for a specific single assignment — confirming the employer is usually the agency

⚠️ Conclusion: “Two years’ service” addresses the qualifying period — not the question of who your employer is. Even if you have worked for 2 years, if you are not an “employee” of any party, or the hirer is not found to be your employer, you may still be unable to bring an unfair dismissal claim against the hirer.

4. Choosing the Respondent According to the Type of Claim

There is no single answer to “who do I sue” — it depends on what you are claiming. Use the table below:

Your claim	Usual respondent	Authority
Unfair dismissal / statutory redundancy pay	Your employer — usually the agency (provided you are an employee and have met the qualifying period); the hirer only if a tribunal finds an implied contract with it	ERA 1996 s.94/135; James v Greenwich
Discrimination / harassment (race, sex, disability, etc.)	Both the agency and the hirer	EqA 2010 s.39 (employer) + s.41 (hirer as principal, liability to contract workers)
AWR equal treatment / day-one rights	The agency (pay/basic conditions after 12 weeks) and/or the hirer (day-one facilities, vacancy information) — liability follows the obligation breached	AWR 2010 reg 5/12/13/18
Unpaid wages / unlawful deductions / holiday pay	Your employer — usually the agency (or umbrella company)	ERA 1996 Part II; WTR 1998
National Minimum Wage	The party that pays your wages (agency / umbrella)	NMWA 1998

📌 Important: Discrimination claims are one of the few situations where you can straightforwardly include the hirer — EqA s.41 specifically provides that the hirer (as principal) must not discriminate against the “contract workers” it uses. Do not name only the agency.

5. The Golden Practical Rule: When in Doubt, Sue Both

In an agency arrangement, “who is the employer” may only be resolved at a full tribunal hearing. To protect yourself:

In the ET1 claim form, name both the agency and the hirer as respondents;
Plead in the alternative: for example, “Primary case: the agency is the employer; alternatively, if the tribunal does not accept that, the hirer is the employer by implied contract / is liable under s.41”;
Let the tribunal determine employer identity, rather than you guessing;
This both avoids a claim being struck out for suing the wrong party and avoids the situation where you only discover the error after the 3-month time limit has passed.

⚠️ Time limit: Employment tribunal claims generally must be brought within 3 months less one day of the relevant event (such as the date of dismissal), and you must first go through ACAS Early Conciliation (which pauses the clock). It is better to name both parties and submit early than to lose time deliberating over who to sue.

6. Agency Workers Regulations 2010 (AWR)

Even if you are not an employee of any party, as an agency worker you still have rights under the AWR:

Day-one rights (from your first day): equal access to shared facilities (canteen, childcare, car parking) and information about job vacancies at the hirer — the hirer is responsible;
After 12 weeks: entitlement to equal treatment on basic working and employment conditions (pay, working hours, rest breaks, night work, etc.) compared with comparable directly-employed staff — principally the agency‘s responsibility, with the hirer cooperating within its area of responsibility;
Breaches can be brought before an employment tribunal (reg 18).

📌 The AWR “12-week” threshold and the “2-year qualifying period” for unfair dismissal are two entirely separate thresholds — do not confuse them.

7. An Additional Layer: The Umbrella Company

Many agency arrangements involve an umbrella company: it nominally “employs” you and handles your wages and tax (PAYE), while the agency only introduces you to assignments. In this situation:

Your contractual employer may be the umbrella company (sue it for unpaid wages / holiday pay);
But discrimination claims can still be directed at the hirer under s.41;
⚠️ Be alert to unlawful umbrella deductions, hidden charges, and sham “self-employment” arrangements — keep all payslips and contracts.

8. The Qualifying Period and the 2025 / 2027 Reforms

As of 2026: ordinary unfair dismissal generally requires 2 years‘ continuous employment (ERA 1996 s.108);
From 2027: the Employment Rights Act 2025 reduces the qualifying period to 6 months — at that point more agency workers (if classified as employees) will be able to claim sooner;
Certain “automatically unfair” dismissals (for example, dismissal connected with pregnancy, whistleblowing, or the exercise of a statutory right) require no qualifying period at all.

See the full guide to unfair dismissal in the UK and workplace rights.

9. Common Scenarios in the Chinese Community and Practical Advice

“The agency told me I am self-employed, so I have no rights” — employment status is determined by facts, not by the label in a contract; many people labelled “self-employed” are in law workers or employees. Seek a status assessment first.
“I worked for 3 years and was suddenly removed from the placement — I want to sue the hirer for unfair dismissal” — first check whether you are an employee of any party; if not, focus instead on discrimination / AWR / unpaid wages — claims that do not depend on “employee + 2 years”.
Racial or language-based discrimination — under s.41, name the hirer as a respondent alongside the agency.
Unsure who your employer is — list the agency, hirer (and umbrella company) all as respondents on the ET1, plead in the alternative, and submit through ACAS within 3 months.
Evidence: keep your contracts, payslips, rota or shift schedules, emails/WeChat messages, records of who directed your work, and materials comparing your treatment with that of directly-employed staff.
Language barriers — you can apply for a free court interpreter.

Circle Vision Foundation Services

The Circle Vision Foundation (CVF) provides employer identification and employment tribunal assistance to agency workers in the Chinese community in the UK:

Employment status assessment — determining whether you are an employee or worker of the agency, the hirer, or an umbrella company
“Who to sue” strategy — identifying the correct respondent(s) by claim type, including multiple respondents and alternative pleading where necessary
ET1 claim assistance — bilingual drafting, incorporating arguments on James v Greenwich, s.41, and related authorities
ACAS Early Conciliation support — managing the 3 months less one day deadline
AWR equal-treatment audit — comparing treatment after the 12-week threshold
Unpaid wages / unlawful deduction recovery — including unlawful umbrella company charges

Email: [email protected]
Address: 5th Floor, 167-169 Great Portland Street, London, W1W 5PF
Website: circle-vision.org/contact-us

📌 Jurisdiction / Data Version Note

Scope: England, Scotland and Wales, which share a unified Employment Tribunal system; Northern Ireland operates a separate Industrial Tribunal with similar but independent rules.

Version of rules: Based on ERA 1996 (s.230/94/108), Agency Workers Regulations 2010, Equality Act 2010 (s.39/41), relevant Court of Appeal case law, and the Employment Rights Act 2025 (reflecting the position as of June 2026).

This article does not constitute legal advice — employer identification is highly fact-specific; please consult a solicitor or the Circle Vision Foundation (CVF) for advice on your individual circumstances.

Version & Responsibility:

Jurisdiction: England and Wales (England & Wales) as primary jurisdiction; Scotland operates under the same ET system
Sources: legislation.gov.uk + case law (BAILII / ICLR) + gov.uk (agency workers / employment status) + ACAS
Date last verified: 2026-06-05
Published by: Circle Vision Foundation (registered charity in England & Wales, charity no. 1209727)
Feedback and corrections: If you believe any rule is out of date or any fact is incorrect, please email [email protected] and we will verify and update within 14 days.

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