Agency workers Regulations: case study

Kerry Viner and Deepa Parekh of Osborne Clarke continue a series of articles on the agency workers Regulations with a case study that looks at how, once the Regulations are in force, agency workers will accrue service entitling them to equal treatment with comparators employed by their hirer. 

Kevin is a temporary agency worker. He is sent on an assignment with Green Ltd in an administrative role, starting on 10 October 2011 and working 35 hours per week. It is his first assignment with Green Ltd and he works there for 10 weeks without a break. What rights does Kevin have under the agency workers Regulations?

From 1 October 2011, under the Agency Workers Regulations 2010 (SI 2010/93), agency workers will be entitled to certain rights from their first day on an assignment with a hirer (regs.12 and 13). After a 12-week qualifying period with a hirer, agency workers will be entitled to the same basic working and employment conditions as comparable employees and workers at the hiring organisation (reg.5). (See Agency workers Regulations: overview in this series for more details of the rights to which agency workers will be entitled.) From his first day with Green Ltd, Kevin will be entitled to access collective facilities and information on internal vacancies. However, after only 10 weeks on assignment at Green Ltd, Kevin will not have completed the 12-week qualifying period necessary for him to be entitled to the same basic working and employment conditions in relation to, for example, pay and working time, as comparable employees working for Green Ltd.

Will the situation be different if Kevin works with Green Ltd for 12 weeks continuously from 10 October 2011?

Yes. Provided that Kevin does not take breaks of more than six weeks during his assignment with Green Ltd, if he completes the 12-week qualification period he will be entitled to equal treatment in relation to:

  • pay;
  • the duration of working time;
  • night work;
  • rest periods and rest breaks; and
  • annual leave.

A pregnant female agency worker in Kevin's situation would also be entitled to paid time off for ante natal appointments.

In determining to what equal treatment he is entitled, Kevin can compare his rights with those of an employee or worker employed directly by Green Ltd. The comparator would not need to be in exactly the same role as Kevin; a worker or employee undertaking a broadly similar role would be deemed to be a sufficient comparator.

How would Kevin's entitlement be affected if he had started his assignment at Green Ltd on 10 July 2011 and was still working there on 1 October 2011 when the Regulations came into force?

The Regulations do not apply retrospectively and agency workers will be able to start counting time towards the 12-week qualification period only once the Regulations come into force on 1 October 2011.

Therefore, even if Kevin started working with Green Ltd in July, well in advance of the Regulations coming into force, his 12-week qualification period would not start to run until 1 October 2011. Kevin will be entitled to day-one rights from 1 October 2011, but he will need to work for a further 12 continuous weeks with Green Ltd from this date before he is entitled to equal treatment in terms and conditions.

After he has worked for Green Ltd for six weeks, Kevin's supervisor decides that he no longer needs Kevin to work 35 hours a week. He would like Kevin to do 15 hours over two days a week instead. Kevin decides to stay on the assignment as this suits him quite well due to his other commitments. Will Kevin's qualifying service be affected by his reduction in hours to only 15 per week?

No. Under reg.7(4), "any week during the whole or part of which an agency worker works during an assignment is counted as a calendar week" for the qualifying period. Therefore, regardless of how many hours or days Kevin works at Green Ltd (even if this is for only a few hours or one day per week), provided that he works there for 12 continuous weeks, the qualifying period will be satisfied and he will be entitled to equal treatment.

Will Kevin continue to accrue service (and as a result acquire the right to equal treatment) if, after three weeks' qualifying service, he takes a four-week break from Green Ltd to undertake another temporary assignment at Purple plc and then returns to the same role at Green Ltd?

A break in an assignment does not necessarily mean that the qualifying period will be broken. Under reg.7(8), breaks of up to six weeks, for any reason, will not break the continuity of the qualification period. Provided that the agency worker returns to work with the same hirer, in substantially the same role and within six weeks, the qualification period will be paused at the point at which the agency worker takes a break, and will resume when he or she returns.

If Kevin leaves Green Ltd temporarily to work at Purple plc, at that point his qualification period will pause. If Kevin's break is for less than six weeks, his qualification period will continue to accrue when he returns to Green Ltd (ie after the three-week service point). In this situation, there will be no permanent break in continuity for the purposes of the Regulations. Kevin will have to work only for a further nine continuous weeks with Green Ltd before he becomes entitled to equal treatment.

If Kevin undertakes a seven-week assignment with Purple plc and then returns to Green Ltd, the break will not pause his qualification period with Green Ltd because it is for longer than six weeks. Instead, the qualifying period will be broken and he will have to work for another 12 continuous weeks with Green Ltd to be entitled to equal treatment.

According to the draft Agency workers Regulations guidance (PDF format, 299K) (on the BIS website), (which may be subject to amendment), where agency workers work for more than one hirer, qualifying periods for each hirer can run at the same time. Kevin could work towards completing the qualification period at Green Ltd while having a qualifying period running simultaneously with Purple plc.

Kevin works at Green Ltd for 10 weeks (starting on 10 October 2011). He is unexpectedly taken ill and takes eight weeks' sick leave. He returns to Green Ltd after this period of absence and continues to work in the same role. How will this period of sickness absence affect his qualifying period?

Under the Regulations, there will be a pause in the qualification period during certain absences (see Agency workers Regulations: qualifying period for more details).

Kevin's absence is due to sickness, for which the qualification period will be able to be paused for up to 28 weeks. In Kevin's case, the qualification period pauses at 10 weeks at the start of his absence. When he returns to Green Ltd after his eight weeks' sick leave, Kevin's qualification period will resume from 10 weeks. Kevin will have work with Green Ltd for only two more continuous weeks to be entitled to equal treatment.

Will the situation be different if Kevin takes two weeks' statutory paternity leave rather than eight weeks' sick leave?

Yes. The Regulations provide for the qualification period to continue to accrue throughout certain absences. Absences due to statutory paternity, maternity and adoption leave (ie through an entitlement with the agency) continue the qualification period as do other pregnancy or maternity-related absences during a "protected period" (from the start of pregnancy to 26 weeks from childbirth or when the agency worker returns to work, if earlier).

Kevin's qualification period will continue to accrue during any period of statutory paternity leave. If he accrues 10 weeks' qualifying service with Green Ltd before taking two weeks' paternity leave, on his return to work after the leave he will have accrued 12 continuous weeks' service with the company. Therefore, he will be entitled to equal treatment under the Regulations.

According to the draft government guidance, different types of absence will be able to run consecutively without breaking the qualification period. For example, if Kevin takes eight weeks' sick leave followed immediately by two weeks' statutory paternity leave, continuity will not be broken. The qualification period will be frozen while he is on sick leave, but will continue to accumulate while he is on paternity leave.

Steve, another agency worker, is also on an assignment at Green Ltd in the role of administrator. He works there for eight weeks. He is told that, due to staff shortages, he is to be moved to another department, also in the role of administrator. What effect will this transfer have on Steve's rights?

If an agency worker's role is substantively changed during an assignment with a hirer, the service that he or she has accumulated towards the 12-week qualifying period will be lost. The agency worker will have to work for a further 12 weeks in the new position before he or she becomes entitled to equal treatment. Establishing what constitutes a substantively different role will not always be straightforward. The draft government guidance makes clear that the duties performed and the skills set used by the agency worker will be more relevant in determining whether or not the role is substantively different than any changes in pay or department.

Assuming that Steve will be carrying out the same or a broadly similar administrative role, using the same skills set, it seems unlikely that the change in department will result in him being considered to be in a substantively different role. Steve's qualification period will be unbroken and after four more weeks on assignment with Green Ltd in this new role he will be entitled to equal treatment.

Had Steve been asked to relocate to a different location and handle machinery instead of undertaking administrative tasks, it is likely that this would qualify as a substantively different role.

Next week's topic of the week article will be frequently asked questions about the agency workers Regulations and will be published on 26 April.

Kerry Viner ( and Deepa Parekh ( are solicitors in the recruitment team at Osborne Clarke.

Further information on Osborne Clarke can be accessed at