Can an employer move agency workers around different connected hirers to prevent their being entitled to additional rights after 12 weeks?
For the purposes of the 12-week qualifying period under the Agency Workers Regulations 2010 (SI 2010/93), continuity is broken if a move to a different part of the organisation amounts to a change in the identity of the hirer. For the identity of the hirer to change, there would have to be a move to a part of the organisation with a separate legal identity, such as a separate limited company.
However, where the most likely explanation for the move to a connected hirer with a separate legal identity is to avoid the impact of the Regulations, the arrangement 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 the hirer; or
- worked in more than two roles during an assignment and have had at least two previous changes of role.
Hirers are connected if one hirer has direct or indirect control of the other, or a third person has direct or indirect control of both.
The Regulations specifically provide that a tribunal should look at the number of times an agency worker has returned to work in the same role with the hirer and connected hirers in assessing the explanation for the structure of assignments. 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 he or she would have completed the period if it were not for the structure of the assignments.