Employers that try to evade the cost of giving agency workers the same employment terms as full-time staff after 12 weeks service by using short breaks to reset the start-date each time a worker nears the 12-week AWD limit, will be hampered by the ‘no work-break’ rule, an employment lawyer has warned.
Under the latest Agency Workers Directive AWD rules employers can only reset the 12-week countdown for agency workers after the worker has been out of work for six weeks, explained Mark Hammerton, partner at Eversheds.
“There must be a break of six weeks of no work for the hirer before the clock on the 12-week qualifying period is reset, to minimise avoidance of the legislation by hirers and agencies,” he said.
Significant enhancements to maternity benefits for agency workers under new AWD rules, which could prove costly, are also going unnoticed by many employers.
In particular, the regulations allow agency workers to claim paid antenatal leave and, where agency workers cannot come back to work to complete an assignment because of poor health and the agency cannot find suitable alternative work, the employer is liable to compensate the worker for the remainder of the work.
Hammerton added: “The right to have paid antenatal leave and to pay for the expected duration of the assignment where, following a health and safety assessment, the assignment cannot be completed and no alternate work can be found, amount to improvements on the protections available.”
XpertHR has this week examined the draft Agency Workers Regulations 2010, which are set out in the government’s consultation document on implementing the Temporary Agency Work Directive, and will come into force in October 2011.