The right to equal treatment will not apply until an agency worker has worked in the same (or significantly similar) role for a hirer for twelve continuous weeks. However, this qualifying period is analogised as a clock which can be reset, paused or continue to “tick”.
There is no minimum amount of work that needs to be completed in order for a week to count as one of the twelve for qualification purposes.
The entitlements that are activated once the qualifying period has been met include:
o pay related to work undertaken on assignment
o duration of working time
o night work
o rest periods
o rest breaks
o annual leave
o paid time off for ante-natal appointments
o Other payments include overtime (where qualifying hours have been
completed) and annual pay award if relevant.
There are exclusions that are not covered under the regulations such as occupational
sick pay from the hirer, occupational pensions (agency workers will be covered by new
automatic pension enrolment effective from October 2012), occupational
maternity, paternity or adoption pay, redundancy pay, notice pay, time off for trade union
duties, expenses and the majority of benefits in kind.
Calculating the twelve week qualification
The twelve week qualifying period is triggered by working in the same job (or significantly similar) with the same hirer for twelve calendar weeks. Therefore, even if the agency worker is on assignment for only a few hours a week, it will still count as a week and they will still be entitled to equal treatment after twelve calendar weeks calculated in this way.
A new qualifying period will only begin if the new assignment with the same hirer is substantively different and/or there has been a minimum of six weeks break between assignments.
An agency worker can qualify for equal treatment after twelve weeks in the same role
with the same hirer, regardless of whether they have been supplied by more than one
agency for part of that period of time.
The general rule under the Regulations is that any break between assignments of six
weeks or less, in the same role, shall not break „continuity‟ for qualification purposes.
The qualifying clock
The twelve week provisions can best be explained by thinking of the qualifying period as
a clock which runs from zero to twelve. Sometimes a gap between assignments will
mean that the clock is reset to zero and must start again. In other circumstances a break
will merely ‘pause’ the clock which will then continue to tick when the agency worker
returns. In some limited circumstances, the clock will continue to tick even if the agency
worker is not working on an assignment.
There are reasons where the qualifying clock is reset to zero. Most commonly it will be
because an agency worker begins a new assignment with a new hirer. Other instances
are where an agency worker remains with the same hirer but is no longer in the same
role, and if there is a break between assignments with the same hirer of six weeks or
more (which is not one which pauses‟ the clock or during which it continues to tick‟).
Qualifying clock to “pause”
There are specific types of break which will cause the qualifying clock to “pause”:
o A break for any reason where the break is no more than six calendar weeks
o A break of up to 28 weeks because the agency worker is incapable of work because of sickness or injury
o Any break which is for the purpose of taking leave to which the agency worker is entitled, including annual leave
o A break up to 28 calendar weeks to allow the agency worker to perform jury service
o A break caused by a regular and planned shutdown of the workplace by the hirer (for example at Christmas)
o A break caused by a strike, lock out or other industrial action at the hirer’s establishment
Qualifying clock to continue to tick
There are breaks where the clock continues to tick. These are breaks due to pregnancy, childbirth or maternity which take place during pregnancy and up to 26 weeks after childbirth; and any breaks due to the worker taking adoption or paternity leave.