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 w