How is the 12-week qualifying period under the Agency Workers Regulations 2010 calculated?
Under the Agency Workers Regulations 2010 (SI 2010/93), agency workers meet the 12-week qualifying period once they have carried out the same role, or substantively similar roles, at the same hirer for 12 weeks. They will then qualify for the same basic working and employment conditions to which they would have been entitled had they been directly recruited by the hirer. If the agency worker changes employment agencies during the qualification period, this will not affect their rights. Provided that the hirer remains the same, the qualifying period will continue to accrue.
The 12-week period does not need to be continuous. Certain breaks will pause the time during which the worker accrues service, and they will resume accumulating service on return from the break.
Breaks between assignments, or during an assignment, during which the qualification period will pause are those where the break is:
- for any reason and lasts not more than six weeks;
- due to sickness absence and lasts up to 28 weeks;
- related to pregnancy, childbirth or maternity during a protected period;
- for the purpose of taking maternity, paternity or adoption leave;
- for the purpose of taking other leave to which the worker has a statutory or contractual entitlement, eg annual leave;
- due to jury service and lasts up to 28 weeks;
- due to a pre-determined period where the employer temporarily does not require any worker to attend the workplace and work in the particular role (eg a temporary factory "shut down"); or
- due to industrial action.
The qualifying period will also pause if there is a break due to a combination of the above reasons, except a break for the first reason listed above (ie a break of six weeks or less that is not covered by one of the other listed reasons).
If an agency worker is absent for a reason related to pregnancy, childbirth or maternity during a protected period or due to maternity, paternity or adoption leave (which can be provided for through their relationship with the agency) the 12-week period will continue to accrue for the original intended duration, or the likely duration, of the assignment, whichever is the longer.
For example, if a worker has a period of pregnancy-related absence beginning during an assignment, the qualifying period will continue until the original intended end date, or the likely end date, of that assignment. If, at the end of the period during which the worker is unable to work for a pregnancy-related reason, they immediately start a new assignment with the same hirer in the same or a substantively similar role, the qualifying period will be deemed to have paused for the period between the intended, or likely, end of the original assignment and the beginning of the new assignment.
Absences that fall outside the above will normally have the effect of breaking service.