Agency workers Regulations: qualifying period
Kerry Viner and Deepa Parekh of Osborne Clarke continue a series of articles on the agency workers Regulations with a look at the 12-week qualifying period, after which agency workers become entitled to equal treatment in basic terms and conditions with a comparator permanently employed by the hirer. Certain absences during an agency worker's assignment with a hirer will pause the qualifying period, while it will continue during other absences.
Introduction
The Agency Workers Regulations 2010 (SI 2010/93), which come into force on 1 October 2011, confer on agency workers certain rights from their first day on an assignment with a hiring end user, and further rights that will apply only if, and when, they complete a 12-week qualifying period with the hirer.
From day one, under reg.12, agency workers will be entitled to have the same access to collective facilities as a comparator employed by the hirer and to apply for relevant vacancies arising within the hiring organisation (reg.13). Under reg.5, agency workers who attain the qualifying period will be entitled to the same relevant terms and conditions (set out in reg.6) in relation to pay, working time and annual leave as comparable employees working for the hirer. Entitlements relating to pregnant agency workers will also apply after the qualification period has been completed. (See Agency workers Regulations: overview in this series for more details of the rights to which agency workers will be entitled.)
On 1 April 2011, BIS published (for comment by 15 April 2011) draft Agency workers Regulations guidance (PDF format, 299K) (on its website). The guidance is not legally binding and may be subject to amendment before being issued in its final form (expected by the end of April 2011 or soon after).
Qualification period background
The Regulations implement the Temporary Agency Work Directive (2008/104/EC). Under the Directive as it was originally drafted, all EU member states would have had to implement legislation to the effect that agency workers were entitled to equal treatment in terms and conditions from day one. The UK Government recognised that this would be unpopular with employers using and supplying agency workers and blocked the legislation at EU level until it was amended to give member states greater flexibility.
The EU Commission eventually agreed to make the Directive more
flexible. Article 5(4) allows member states to introduce a qualifying period,
provided that this period has been agreed by the relevant member state's "social
partners". In relation to the
Calculating the qualifying period
The Regulations do not apply retrospectively. This means that for workers who are already on an assignment on 1 October 2011, the qualifying period will begin to accrue only from this date. For workers commencing an assignment after 1 October 2011, the qualifying period will begin on their first day at the hirer.
To meet the qualifying period, an agency worker must work for 12 weeks with the hirer rather than the agency. This means that even if the agency worker changes agencies during an assignment period the qualifying period will continue to accrue. The same applies if an agency worker changes agencies during a break that pauses or maintains the qualification period. For example, if an agency worker works at a hirer through agency A for eight weeks, has a three-week break (which is shorter than the maximum break period that restarts the qualifying period) and resumes work, but through Agency B, for 10 weeks, the previous eight weeks will count towards the qualifying period.
The draft government guidance confirms that 12 calendar weeks will accrue on a weekly basis regardless of how many hours the agency worker actually works. For example, if an agency worker is on an assignment during which he or she works one shift of four hours per week, that shift will be counted as one calendar week's work for the purpose of the Regulations.
Under reg.7, the qualifying period will accrue only for as long as the agency worker works in the same role with the same hirer for 12 calendar weeks. However, if a worker works for several hirers at once, the draft guidance makes clear that several qualifying periods can run simultaneously.
The 12 weeks do not need to be consecutive and certain types of absence will pause or keep the qualifying period running.
Absences that pause or continue the qualifying period
Regulation 7 makes clear that certain periods of absence will not cause all previous qualifying period entitlement to be lost. Depending on the reason for the absence, the qualifying period may continue to accrue throughout the absence or will be frozen and resumed when the agency worker returns from the absence.
Absences during which the qualification period continues to accrue are those due to:
- pregnancy and maternity during a "protected period" from the start of pregnancy to 26 weeks from childbirth or when the agency worker returns to work, if earlier; and
- statutory maternity, paternity or adoption leave.
Absences for which the qualification period will "pause" (ie previous service will be counted with service following the absence, but the period of absence itself will not count) are:
- jury service of up to 28 weeks;
- sickness absence of up to 28 weeks;
- annual leave;
- organisational "shut down" (eg annual, pre-determined factory closure); and
- industrial action.
Absences that fall outside the above will normally have the effect of breaking service.
Same or not "substantively different" role
The qualifying period can be fulfilled through one or a number of assignments. The draft guidance makes clear that this will be the case provided that the agency worker remains in the same role, or one that is not "substantively different" from the previous role that he or she performed.
Identifying what amounts to a "substantively different" role will not always be straightforward. According to the draft guidance, in the event of a dispute, an employment tribunal can consider a combination of factors to establish whether or not a role is substantially different from a previous role, including:
- differences in the skills and competencies required;
- pay rate differential;
- a requirement to carry out work in a different location;
- differences in line managers;
- changes in working hours;
- a requirement for extra training and/or specific qualifications for the new role; and/or
- a requirement for different equipment.
An end user that deliberately changes an agency worker's role to prevent him or her completing the qualification period may be liable under the anti-avoidance provisions in the Regulations.
Anti-avoidance
Regulation 9 sets out anti-avoidance measures to prevent hirers or staffing companies from structuring assignments so that they fall short of the qualifying period. Under reg.18(14), an employment tribunal can award compensation of up to £5,000 against an end user and/or staffing company in favour of an agency worker who has been subjected to attempts to avoid the qualifying period.
The tribunal will make an award under the anti-avoidance provisions if it detects a pattern of hiring that is aimed at avoiding the equal treatment obligations under the Regulations. Under reg.9(3) and (4), a pattern is more likely to be found if the agency worker:
- completes two or more assignments with a hirer;
- completes at least one assignment with the hirer and one or more earlier assignments with persons connected with the hirer (such as a subsidiary company); or
- works in more than two roles during one assignment that are believed to be "substantially different"
and the most likely explanation for the structuring is to prevent the agency worker from qualifying for equal treatment.
The anti-avoidance provisions do not apply in relation to other rights that are not affected by the qualifying period.
Next week's topic of the week article will be a case study around the agency workers Regulations and will be published on 18 April.
Kerry Viner (kerry.viner@osborneclarke.com ) and Deepa Parekh (deepa.parekh@osborneclarke.com) are solicitors in the recruitment team at Osborne Clarke.
Further information on Osborne Clarke can be accessed at www.osborneclarke.com.
