How does an agency worker qualify for equal treatment
- Summary
- An introduction to the Agency Workers Regulations 2010
- The application of the AWR to limited company contractors
- How does an agency worker qualify for equal treatment
- What is equal treatment?
- What is the liability for breach of the regulations?
- Maternity rights under the Regulations
- Employed agency workers - when does equal treatment not apply?
- The repeal Of Swedish Derogation contracts April 2020
How does an agency worker qualify for equal treatment?
The Regulations state that an agency worker is not entitled to equal treatment until s/he has completed the qualifying period. Under Regulation 7 an agency worker will complete the qualifying period by working “in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments.” On the face of it, counting 12 weeks may seem fairly straight forward but there are a number of factors that will in practice make the 12 week period difficult to measure.
12 weeks with the same client:
The agency worker must complete the 12 week period by working in the same role with the same client. However, the agency worker does not have to work for those 12 weeks through the same agency. This means that an agency worker can complete the qualifying period even if supplied by more than one agency to the same client. Agencies will therefore need to have mechanisms in place to identify those agency workers who may have already been supplied to a client. Ultimately the agency worker will be best placed to provide this information. We would suggest that this is addressed at the registration stage. However the client should also be asked to provide this information as the liability under the Regulations rests with the agency and/ or the client (see Factsheet 5).
What is the same role?
Regulation 7(3) states that the agency worker will be working in the same role unless s/he starts a new role in which the work or duties are “substantively different.”
In some cases it will be relatively straightforward to identify when the work that the agency worker is doing in a new assignment is “substantively different” but there will be situations when this is not easy to identify. However, the Regulations place the focus on the work and duties performed during the assignment, so if the only difference in a new assignment is that the agency worker moves to a different department or a job title has changed, this will not be a new role. For example, if an agency worker is supplied to provide admin support (typing, filing, etc.) within a client’s sales team and moves to do the same work for the marketing department for the same client, the work and duties here are clearly the same and there is no new role. Page 24 of the guidance sets out a few questions which could assist with determining whether the roles are substantively different:
- Are different skills and competences used?
- Is the pay rate different?
- Is the work in a different location/cost centre?
- Is the line manager different?
- Are the working hours different?
- The role requires extra training - and/or a specific qualification that wasn’t needed before?
- Is different equipment involved?
Therefore, the agency and the client will need to assess whether any new role with the client will be substantively different from the previous role.
Importantly, if the work and duties are “substantively different,” the agency worker will only be deemed to be in a new role if the agency notifies the agency worker in writing that the new role is substantively different and that there will be a new qualifying clock for the new role. Presumably, the purpose of this is to ensure that the worker is aware that the duties will be different and to flag up that this may delay or prevent the agency worker from reaching the 12 week qualifying period. If the agency worker starts a new assignment, albeit carrying out the same work and duties as in a previous assignment, but with a different client, this will not be the “same role” for the purposes of the Regulations. In this case the agency worker will start a new qualifying clock for this new assignment with the new client. Agency workers can have a number of qualifying clocks running at the same time.
Working in the same role with different clients:
If an agency worker works in the same role but for different clients s/he will have separate qualifying clocks running with each client. For example, an agency worker who is assigned to drive an HGV 1 lorry one day a week each for four different clients will have four separate qualifying clocks, one for each client.
If an agency worker begins a new assignment, will any existing qualifying clocks automatically reset to zero?
The REC’s view is that any existing qualifying clocks will not automatically reset to zero simply because the agency worker has started a new assignment. Any existing clocks will remain until there has a relevant break between assignments which will cause any or all of them to reset to zero.
What are the permitted breaks in assignments?
Working for 12 continuous weeks:
Any week in which the agency worker works for the hirer will count towards the 12 week qualifying period, even if it is for just one day in a week or even 1 hour that week. However, the agency worker does not have to work for 12 continuous weeks in order to reach the qualifying period. The Regulations allow the agency worker to have certain breaks in an assignment without having to start counting towards the 12 weeks from scratch. This means that an agency worker’s qualifying period can be accrued over a period of time which exceeds 12 weeks.
The six week break:
Regulation 7 provides that if the agency worker takes a break from an assignment for any reason and the break is for six weeks or less, on returning to the same role, the weeks that the agency worker previously worked will be carried forward. So for example, if an agency worker works for eight weeks in a role with a client and takes a two week break from the assignment for whatever reason, on returning to the same role with the same client, the agency worker will enter into the ninth week of the count towards 12 weeks. The agency worker will not have to start counting again from zero but will only need a further four weeks to reach the 12 week qualifying period.
Other breaks permitted in the Regulations:
An agency worker having worked in the same role with the same client will also be able to carry forward weeks previously worked towards the qualifying period if they have a break in continuity which is caused by:
- sickness or injury (up to a maximum of 28 weeks and provided evidence is given to the agency where requested);
- pregnancy, childbirth or maternity and the agency worker is within a “protected period” (i.e. from the beginning of pregnancy to 26 weeks from childbirth);
- statutory/contractual maternity, adoption or paternity leave;
- jury service;
- periods when the client does not require the agency worker because of various types of industrial action at the client’s establishment; or
- periods when the client does not require the agency worker because the business has temporarily closed down (e.g. Christmas shut down).
This means that even if the break is for six weeks or more but is for one of the reasons listed above, any weeks worked prior to the break will be carried forward and added to any weeks worked subsequently.
Breaks in the education sector:
Members supplying in the education sector have asked whether school holidays count as a break caused by a regular and planned shutdown of the workplace by the client and therefore pause the qualifying clock? In November 2011 the Department of Education (DFE) produced supplementary guidance for agencies supplying in the education sector. The following text has been taken from the supplementary guidance:
“What is the impact of school closures?
The Agency Workers Regulations recognise that in some instances a workplace might close due to the temporary cessation in the hirer’s requirements for any worker to be at the establishment.
This could be applied to a school closure (for example, summer holidays). If an agency supply teacher is working before and after such a closure and is, for example, 6 weeks into a qualifying period for equal treatment, the qualifying period would pause at the end of one term and start again at the beginning of the next so long as the agency worker returns to the same job with the same hirer.”
The supplementary guidance by the DFE for supply teachers is available here. (Page 6)
Weeks where the agency worker will be deemed to be working even when unable to continue working in a role:
Regulation 7 provides for certain limited circumstances where, even though the agency worker is absent from an assignment role, his or her qualifying clock continues to accrue, i.e. it will continue to “tick”. The Regulations will also allow an agency worker to count weeks toward the qualifying period when the agency worker starts a role but then is unable to complete it. These circumstances are fairly limited and will only apply if the reason that the agency worker has not returned to the assignment is as a result of one of the following:
- a break related to pregnancy, childbirth or maternity which takes place during pregnancy and up to 26 weeks after childbirth;
- any break due to the agency worker taking maternity, paternity or adoption leave.
The agency worker will be deemed to have worked in any week which is covered by the above reasons for either the actual duration of the assignment or the likely duration of the assignment. (See Factsheet 6 for more information on new rights for pregnant agency workers).
Question: If a pregnant agency worker is off sick but the reason for the sickness is actually related to the pregnancy – would the qualifying clock ‘pause’ or continue to ‘tick’?
If the agency worker is absent due to sickness relating to her pregnancy the clock will continue to “tick”, rather than “pause”. However, the absence relating to pregnancy, childbirth or maternity must occur during the “protected period”, which for the purposes of the Regulations, is the duration of the pregnancy and up to 26 weeks after childbirth, or earlier if the agency worker returns to work sooner. Obviously if the agency worker has called in sick (and you did not know that she was pregnant or she made no mention that the sickness was related to the pregnancy), an agency would initially treat the clock as being paused due to sickness or injury. However, if the agency is then informed by the agency worker that the sickness is related to pregnancy, then this absence should be treated as a week in which the qualifying clock has continued to ‘tick’.
Achieving the qualifying weeks while working for different agencies and the issues this will raise for recruiters?
The 12 week qualifying period can actually be achieved over a longer period of time if the agency worker’s assignment or assignments is or are broken by certain circumstances. Therefore when registering and supplying a new agency worker, it will be crucial for the agency to have procedures in place to identify whether the agency worker has already worked for the same client in the same role even if this is through a different agency. The agency worker may have already worked some weeks towards the qualifying period or may even have completed the full 12 weeks and be immediately entitled to equal pay and working conditions. Where this is the case, it is important that the agency takes steps to ensure that the working and employment conditions applied are compliant with the Regulations.
Is the client or agency worker best placed to provide information?
An agency should ask an agency worker if s/he has previously worked in the same role for the same client. We also recommend checking regularly where they are working if you supply them only for part of the week or irregularly. Agencies need to check whether in fact the agency workers are working in the same role albeit via a different agency. Agencies should also at the same time as proposing a worker to the client, request information from the client as to whether the worker has previously undertaken any role with them or a connected client via another agency, and if so what the role was and what the earliest date is that the worker worked for the client. However, clients may not always keep a record of who has already worked for them and may rely on agencies to identify those workers who will be entitled to equal treatment.
How can the tracking entitlement be monitored effectively?
There may be significant problems in tracking and monitoring agency workers to identify at what stage the qualifying period is reached, particularly in those sectors where agency workers are engaged by multiple agencies and agencies will need to find an effective method of tracking the qualifying clock. However, clients who are keen to avoid paying temp-to-temp transfer fees may already have mechanisms in place to identify workers who have previously worked for them through another agency. In this case it may not be too difficult for them to provide agencies with information which will assist in ensuring that the Regulations are complied with. Agencies must ensure that they have sought relevant information from the client and the agency worker in order to ensure that the agency worker receives his/her equal treatment rights and to avoid liability for failing to comply with the Regulations.
Can the agency worker count time worked in an assignment before the Regulations came into effect to qualify for equal treatment?
No. The Regulations are not retrospective. This means that any time spent on an assignment up to and including 30 September 2011 (in England, Scotland and Wales) or 4 December 2011 (in Northern Ireland) will not count towards the qualifying period.
The earliest dates that an agency worker could have qualified for equal treatment was 24 December 2011 (in England, Scotland and Wales) or 27 February 2012 (in Northern Ireland) subject to any breaks in their assignments.
Are agencies or clients allowed to structure assignments in a way to prevent agency workers from reaching the 12 week qualifying period or stop giving them equal treatment?
No. Prior to the drafting of the Regulations, concerns were raised about the possibility that agency workers could be prevented from receiving equal treatment if they were unable to reach the 12 week qualifying period as a result of the way that their assignments were structured by either agencies, and/ or clients.
In order to combat this possibility, the Regulations include specific provisions which entitle the agency worker to be treated as if the equal treatment provisions apply even if s/he has not reached the 12 week qualifying period. These provisions are set out in Regulation 9. The anti-avoidance provisions also protect agency workers who having reached the 12 week qualifying period then have their assignment arranged in such a way which results in their entitlement to equal treatment coming to an end.
There are three circumstances in which this provision applies:
- if an agency worker has completed two or more assignments with the same client; or
- if the agency worker has completed one assignment with a client and at least one other assignment with another person that is connected with the client (e.g. another company in the same group of companies); or
- if the agency worker has worked for the same client but in different roles.
Example
Client A Ltd and Client B Ltd are both owned by the same parent company. Client A instructs an agency to supply an agency worker to work in its distribution centre and the agency worker carries out the assignment for 10 weeks. The assignment then ends. Client B then instructs the agency to supply the same agency worker to work in its warehouse in an assignment which also lasts for 10 weeks. After this time Client B terminates the assignment, and the agency worker is again supplied to Client A for a further 10 weeks before returning to a further assignment with Client B. The agency worker is prevented from reaching 12 weeks in either the distribution centre role or the warehouse role because more than six weeks is spent away from each of the roles at a time.
The anti-avoidance provisions mean that the agency worker may be treated as if the 12 week qualifying period has been reached once the agency worker has completed the second week of the assignment with Client B (10 weeks worked with Client A and two weeks worked with Client B equals 12 weeks in total i.e. the qualifying period). This is because both companies are connected and the agency worker has been supplied into roles which individually are not long enough to allow the 12 week qualifying period to be reached.
The Regulations essentially provide that if, in any of the above circumstances, the most likely reason for the structure and the arrangement of the assignments is that either the agency or the clients have tried to prevent the agency worker from reaching the 12 week qualifying period or to prevent an agency worker who has reached the 12 week period from continuing to receive equal treatment, the agency worker will continue to have the benefit of the equal treatment provisions in any case.
The issue to be determined here is whether the most likely reason for the arrangement of these assignments is to prevent the agency worker from having the benefit of equal treatment. In the event of a dispute, the factors that an Employment Tribunal will take into account are as follows:
- the length of the assignments;
- the number of assignments carried out with the client and any connected clients;
- the number of times the agency worker has worked in a new role with the client and, where applicable, a client connected to the client, where the new role is not the same role;
- the number of times the agency worker has returned to the same role with the client or a connected client;
- the period of any break between assignments with the client and any client connected with the client;
- the clients in the example above may well have other reasons, operational reasons for example, which explain the pattern of these assignments, but in the absence of an explanation the agency worker will be treated as if equal treatment applies.
Does this mean that the client cannot ask to be supplied with a temporary worker for less than 12 weeks?
No, subject to a word of caution. The anti-avoidance provisions will not mean that clients will be prevented from taking on an agency worker for 12 weeks only or for less than 12 weeks. A client will still retain the flexibility to take on an agency worker to meet its requirements and to terminate an assignment at or before 12 weeks if required.
The anti-avoidance provisions set out in Regulation 9 apply to scenarios where the same agency worker has (or a group of agency workers have) undertaken more than one assignment or more than one role with the same client or connected clients. This provision would not prevent a client from being supplied with a series of different agency workers for periods of less than 12 weeks. However, REC reminds members that under Regulation 17 an agency worker is entitled not to be subject to a detriment on a number of grounds set out in that regulation including: (a) that s/he has alleged that the agency has breached the Regulations, (b) that s/he has refused to forego an entitlement under the Regulations, or (c) that s/he has brought proceedings or given evidence in proceedings under the Regulations. Therefore an agency should take care that it does not terminate an agency worker’s assignment supposedly on the grounds that the client does not need him/ her beyond 12 weeks but in reality because the agency worker has alleged a breach of the Regulations or supported another agency worker on his/ her claim.
Examples of how to calculate the 12 week qualifying period
Example 1:
A started a new assignment in Manchester on 11 May 2020. From that date A was entitled to access client on-site facilities such as the staff canteen, childcare or transport facilities. From week 13, A was also entitled to receive equal treatment in terms of pay and working conditions in comparison to the client’s own directly engaged staff.
Example 2:
B started a new assignment in Belfast on 15 June 2020. From day one B was entitled to access client on-site facilities such as the staff canteen, childcare or transport facilities. B worked continuously for four weeks, then took a one week holiday before returning to the same role. This one week break did not stop the qualifying clock and the four weeks previously worked were carried forward. B worked for another six weeks before the assignment was terminated by the client making a total of 10 weeks accrued qualifying time. Five weeks later B was supplied back to the same client to do the same role but this time through a new agency. The five week break did not stop the qualifying clock and the 10 weeks previously worked were carried forward. B then worked for another two weeks in the same role with the client and at that point completed the qualifying clock.
Example 3:
C started a new assignment on 06 July 2020. From day one C was entitled to access client on-site facilities such as the staff canteen, childcare or transport facilities. C works continuously for five weeks, and then takes a four week holiday. This did not stop the qualifying clock and the five weeks worked to date were carried forward. C returned to the same assignment, and worked for another five weeks before the assignment was terminated by the client. C had 10 weeks on the qualifying clock at this point. After seven weeks absence, the client requested that C returned to do the same job. This seven week break exceeded the six week break permitted by the Regulations and stopped the qualifying clock. Therefore, when C started a the new assignment he had not accrued any time towards the 12 week qualifying period. Note: Please check with your client in a situation such as this that they have not instructed you to terminate and then restart an assignment in an attempt to prevent the agency worker from completing the qualifying period. If the client deliberately structures assignments this way, this will breach the anti-avoidance provisions set out in Regulation 9.
Example 4:
E was a pregnant agency worker. She started a new assignment on 03 August 2020 and worked three days a week from that time. From 4 December 2019 E was entitled to access the client’s on-site facilities such as staff canteen, childcare or transport facilities. She worked for eight weeks before taking one week off with pregnancy related sickness and then returned to the same role. In terms of the qualifying clock, because her absence was pregnancy related, she would be treated as if she had worked in the week that she was absent, meaning that when she returned to the assignment she had worked nine weeks towards the qualifying period.
Does the AWR qualifying clock pause for my agency workers whilst they are on furlough if my client ends the assignment due to COVID-19, but re-engages them on a later date?
To recap, an agency worker qualifies for equal treatment under the Agency Worker Regulations 2010 (AWR) if they have worked in the same role with the same hirer (your client) for 12 calendar weeks. When building up to the 12-week qualifying period, this does not need to be continuous, but if there is a break in an agency worker’s assignment, they may lose this entitlement, meaning that any previous weeks worked towards the 12-week qualifying period will be lost, and they will start back at zero.
In some instances, agency workers will be able to retain the benefit of previous weeks worked towards the 12-week qualifying period, if there is a break in their assignment but the reason for the break is a permitted break under the AWR. In such instances the 12-week qualifying period will paused - sometimes referred to as “pausing the qualifying clock”.
A common permitted break which will pause the AWR qualifying clock (the clock) and will allow agency workers to carry forward weeks previously worked, is if the break is less than 6 calendar weeks.
Other permitted breaks which will also pause the clock are as follows:
· if the break from the role is due to sickness or injury up to 28 weeks and provided evidence is given to the agency where requested;
· wholly for the purpose of taking time off or leave, whether it be statutory or contractual to which the worker is entitled (e.g. annual leave).
· to perform jury service;
· if the client does not require the agency worker because the business has temporarily closed down according to the established custom and practice of the client (e.g. Christmas day, or closure for school holiday periods)
· if the client does not require the agency because of a strike, lock-out or other industrial action at the client’s site.
The clock will not pause but will continue to run if the break is:
· related to pregnancy, childbirth, or maternity and is within a “protected period” (i.e. from the beginning of pregnancy to 26 weeks from childbirth or if earlier if the worker returns to work);
· because the worker is taking time off or leave whether it be statutory or contractual (to which they are entitled), due to maternity, adoption, paternity, or a combination of such leave.
Based on the above criteria, and in light of the Coronavirus Job Retention Scheme (CJRS), a permitted break which would pause the clock for a furloughed agency worker, would be if in less than 6 weeks, your client re-engages them.
Another permitted break would be if the clock pauses for an agency worker who is sick or injured for up to 28 weeks, and has provided medical evidence – if requested. This would apply to agency workers who are sick and cannot work as a result. In our view, it could arguably extend to a furloughed agency worker who is self-isolating due to Covid-19, because the person has symptoms and is not able to work from home.
It has been argued that other criterions apply to furloughed agency workers, such as:
· if the client does not require the agency worker because the business has temporarily closed down according to the established custom and practice of the client (e.g. Christmas day, or closure for school holiday periods).
In our view, this would not pause the clock for an agency worker who has been placed on furlough because the client no longer needed them due to Covid-19. This is because the reason for the closure is not an “established custom and practice of the client”.
· if an agency worker “takes time off or leave whether it be statutory or contractual to which the worker is entitled”.
In our view, it is questionable as to whether this type of break would apply to the period that an agency worker is furloughed. This is because the key part of this permitted break is a break that a worker would be statutorily or contractually entitled to under their contract. It would be difficult to see how an agency worker could say that the period they were furloughed amounts to time off or leave, which they are entitled to, as it is likely that their contract would not contain this specific contractual right. Also, there is currently no statutory right to be furloughed in connection with the CJRS.
This is a new concept to UK employment law giving employers the opportunity to use the scheme. No aspects of this have been tested against existing employment laws and there will be scope for challenges on different interpretations in time.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.