Are You Prepared For The 1st October- Agency Worker Regulations?

Peninsula Team

September 05 2011

Is your business prepared for new agency worker regulations coming into effect from the 1st October? From 1st October 2011, agency workers will be entitled to the same rights as their permanent counterparts in relation to pay and working time when they have been in a particular assignment in an hiring organisation for 12 weeks. But does 12 weeks always mean 12 weeks?

There are many rules in the regulations themselves around the accrual of 12 weeks and these are illustrated in terms of the ‘qualifying clock’. Sometimes the clock will be paused, sometimes it will be reset and sometimes it will continue to tick even when the agency worker is not actually in work.

So what are the rules? Click here to see just how the 12 weeks will be calculated.

It is important to note first that no time before 1st October 2011 will count towards the accrual period of an agency worker. All ‘clocks’ will start from zero on this date so even if an agency worker has been with you for 7 weeks prior to this date, it is not the case that they will only have to work for another 5 weeks in the same assignment after 1st October 2011 to qualify for equal treatment rights. 12 weeks will have to be worked from this date for the regulations to kick in in relation to their ‘12 week rights’.

Remember though, that some rights are triggered from day 1, so information on vacancies in the hirer’s organisation, and access to collective facilities will need to be provided from 1st October 2011.

Any week in which as little as an hour’s work is done will count towards the 12 week accrual and a calendar week is defined as any seven days starting with the first day of the assignment – the week does not need to start on a Monday.

Also important to realise is that it is 12 weeks with a particular hirer that counts, not with a particular agency. If Agency 1 places a worker with a hirer for 6 weeks but then the worker changes agencies but is placed by Agency 2 with the same hirer for a further 6 weeks, the 12 week point is reached.

The Government realises that patterns of agency workers can be irregular so the regulations provide for a number of circumstances in which breaks do not prevent the agency worker from completing the qualifying period.

Any weeks accrued will be disregarded and the ‘clock’ will be reset to ‘0’ when:

• an agency worker starts a new assignment with a new hirer;
• an agency worker starts a new role with the same hirer;
• there is a break of 6 weeks or more between assignments with the same hirer (where the break does not pause the clock or continue to tick – see below).

Any weeks accrued will remain in place and the clock will pause for a break:

• for any reason that is no longer than 6 weeks;
• of up to 26 weeks due to sickness or injury;
• which is for the purpose of taking leave to which the agency worker is entitled, including annual leave;
• of up to 28 weeks to perform jury service;
• caused by a regular shut down of the workplace;
• caused by a strike, lock out or other industrial action.

Example 1 - An agency worker works in a factory and has an assignment that starts 2 weeks before the factory closes down during the summer period and continues when it re-opens after the summer (or 2 separate assignments before and after the summer holidays). As the factory effectively closes, the qualifying clock will pause and continue running from where it left off when it re-opens.

Example 2 - An agency worker has a break of 5 weeks between assignments then is absent for 2 weeks due to sickness. Sickness absence pauses the clock, which then resumes ticking when the worker returns to the same role. In these circumstances, the break is longer than 6 weeks but continuity is not broken as the clock pauses after 5 weeks.

For more information on agency workers please contact Peninsula’s Advice Service on 0844 892 2772.

Suggested Resources