Does an agency worker lose his or her entitlement to additional rights under the Agency Workers Regulations 2010 if he or she changes role within the organisation after the 12-week qualifying period?
If an agency worker changes role within an organisation after the 12-week qualifying period, he or she will retain the right to the same basic working and employment conditions as would apply to a direct recruit in the new role, unless the work or duties that make up the whole or main part of the new role are substantively different from the previous role.
If the new role is substantively different, and the temporary work agency has informed the agency worker in writing of the type of work required in the new role, the clock for calculating the 12-week qualifying period will be reset to zero. The agency worker will become entitled to equal basic working and employment conditions again after 12 weeks' service in the new role.
Whether or not the role is substantively different will depend on factors such as:
- the skills and competences used;
- the pay rate;
- the location and/or cost centre;
- the line manager;
- the working hours;
- the training required;
- any specific qualifications required; and
- the equipment involved.
Government guidance on the Regulations uses the example of a warehouse that has agency workers to work on a production line and to pack products for distribution. It states that, where moving from the production line role to a packing role requires little training and uses the majority of the same skills, the roles are unlikely to be substantively different.