Can an employer limit the use of agency workers to assignments of less than 12 weeks, to avoid the impact of the Agency Workers Regulations 2010?
The use of genuinely separate assignments of less than 12 weeks can successfully avoid the impact of the Agency Workers Regulations 2010 (SI 2010/93) in some circumstances.
However, while the qualifying period for agency workers to be eligible for the same basic working and employment conditions that they would have received if recruited directly is 12 continuous weeks, there are a number of occasions where shorter assignments will be deemed to be linked and can be added together to count towards the qualifying period. In particular, assignments will be linked where there is a period of six weeks or less between them. Assignments will also be linked where the gap between them is explained by a predetermined period, according to the hirer's custom and practice, when it does not require the services of a worker in the role. For example, an agency teacher who taught for four weeks before the summer holidays would complete the qualifying period after only eight weeks of an assignment in the same role, starting immediately after the holidays.
Further, where the most likely explanation for the structure of a series of assignments is that the agency or the hirer is attempting to avoid the impact of the Regulations, it is likely to fall foul of the anti-avoidance provisions under reg.9. For the anti-avoidance provisions to bite in these circumstances, the agency worker must have:
- completed two or more assignments with the hirer;
- completed one or more assignments with the hirer and one or more earlier assignments with hirers connected to that hirer; or
- worked in more than two roles during an assignment and have had at least two previous changes of role.
An example of where assignments of less than 12 weeks could fall within the anti-avoidance provisions is where an agency worker works two assignments of 10 weeks each with a gap of seven weeks between them (so they are not linked for the purposes of calculating the 12-week period) and is then, after a further seven-week gap, invited back for a third assignment and the tribunal considers that the most likely explanation for this structure is to avoid the impact of the Regulations.
The anti-avoidance provisions apply only where there is a series of assignments or changes of role. Therefore, they would not prevent a policy of using agency workers for assignments of less than 12 weeks if the same agency workers are not subsequently rehired for a further assignment.
If the tribunal considers that the structure of assignments falls within the anti-avoidance provisions, the agency worker will be treated as having completed the qualifying period from the time that they would have completed the period if it were not for the structure, ie in this example, at the end of week two of the second engagement. Regulation 9(5) specifically provides that the factors that tribunals should consider in assessing the explanation for the structure of assignments include the length of the assignments and the gap between them.