Agency workers who have been working for the same hirer since 1 October 2011 will soon be reaching the end of the 12-week qualifying period required under the Agency Workers Regulations 2010 to give them additional rights.
Q How is the 12-week qualifying period calculated?
The agency worker must "work in the same role with the same hirer for 12 continuous calendar weeks during one or more assignments". It should be noted that any period that the agency worker spent working for the hirer before 1 October 2011, when the Regulations were introduced, does not count.
The qualifying period will be broken in the following circumstances:
- the agency worker starts a new assignment with a different hirer;
- the agency worker remains with the same hirer but starts a substantively different role; or
- there is a break of at least six calendar weeks between assignments with the same hirer.
The qualifying period can be suspended in certain circumstances, including when there is less than six weeks between assignments, the agency worker takes annual leave, or is off sick for up to 28 weeks. On the agency worker's return to work the qualifying period will continue.
Q What rights do agency workers have after the qualifying period?
After the 12-week qualifying period, agency workers become entitled to the same terms and conditions that he or she would have been entitled to if directly recruited by the hirer. This is limited to terms relating to:
- duration of working time;
- night work;
- rest periods;
- rest breaks; and
- annual leave.
These rights are in addition to the "day one" rights that agency workers have from the start of their assignment. Specifically, access to collective facilities (eg the staff canteen) and access to information about suitable vacancies with the hirer.
Q Can assignments be structured to avoid being caught by the Regulations?
As stated above, the qualifying period is broken if there is a six week break or more between assignments. Assignments could be structured so that the agency worker works for a period of less than 12 weeks and there is then a six week break before they start another assignment with the same hirer. There are, however, anti-avoidance provisions within the Regulations to prevent assignments being structured in this way. These provisions allow for the agency worker to work two such assignments with a six week break between them. However, if there are any further assignments in the same role and the most likely explanation for the structure of assignments is that the hirer or the agency is trying to avoid the agency worker gaining rights under the Regulations, then it will be a prohibited structure. If an employment tribunal finds that a prohibited structure was in place then an additional award of up to £5,000 can be made.
Q What is the "Swedish derogation model" and does it avoid the obligations?
The Swedish derogation model is where the agency directly employs the agency worker prior to them being placed on an assignment and pays them during and between assignments. If this model is used there is no obligation to ensure that the agency worker is paid the same as their directly engaged counterparts. However, they are still entitled to equal treatment with regards to the other relevant terms (annual leave, rest breaks etc.)
It is questionable whether this model will be widely used. Agencies are arguably going to be unwilling to directly employ agency workers due to the additional liabilities that they would be taking on, including the potential right of the agency worker to make a claim for unfair dismissal once they have completed the required length of service. Further, while the agency worker would not have to be paid the same as their directly recruited colleagues, all the other obligations under the Regulations remain, so the benefits of the model are limited.
Q What practical steps can be taken to avoid breaching the Regulations?
Both the hirer and the agency can be subject to tribunal claims for breaches of the Regulations. It is, therefore, important for there to be a flow of information between the hirer and the agency about the terms and conditions of the staff directly recruited by the hirer and the agency worker. Agencies are already asking hirers to provide this information and hirers should ensure that this is supplied. There should also be careful monitoring of how long agency workers have been working with the hirer so that it is clear when the qualifying period has been completed. Legal advice should be sought if there is any uncertainty as to whether or not the Regulations are being complied with.
Andrew Browning, solicitor, Thomas Eggar LLP