Can an employer move agency workers around different roles in the organisation 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 the agency worker starts a new role with the hirer where the work or duties that make up the whole or the main part of the new role are substantively different from the work or duties that made up the whole or the main part of the previous role. The agency must inform the agency worker in writing of the type of work that they will be required to do in the new role.
However, where the most likely explanation for the move to a new role 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 provide that a tribunal should look at the number of times the agency worker has worked in a substantively different role with the hirer or connected hirers, and the number of times they have returned to work in a previous role. 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 of the assignments.