AWR Factsheet 3- How does an agency worker qualify for equal treatment?

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1 AWR Factsheet 3- How does an agency worker qualify for equal treatment? 4 th edition: January 2015 Factsheet summary The Regulations give agency workers new rights to receive treatment equal to that of a client s own directly engaged workers in respect of pay, conditions relating to working hours, access to the client s collective facilities and the right to be informed of job vacancies that the client has. Agency workers are also entitled to access the client s on-site facilities and to be informed of job vacancies within the client s business from day one of an assignment. However the additional rights to equal pay and working conditions will only apply to agency workers who qualify by working for a qualifying period. In this Factsheet we look at how an agency worker will establish the right to equal treatment and how the qualifying period is measured. Contents: 1. Introduction to the Agency Workers Regulations How does an agency worker qualify for equal treatment? weeks with the same client 2.2. What is the same role? 2.3. Working in the same role with different clients 2.4. If an agency worker begins a new assignment will any existing clocks automatically rest to zero? 3. Breaks in assignments 3.1. Working for 12 continuous weeks 3.2. The six week break 3.3. Other breaks permitted in the Regulations Breaks in the education sector 3.4. Weeks where the agency worker will be deemed to be working even when unable to continue working in a role 4. Achieving the qualifying weeks while working for different agencies 4.1. Is the client or agency worker best placed to provide the information? 4.2. Tracking entitlement 5. Can the agency worker count time worked in an assignment before the Regulations came into effect to qualify for equal treatment? 1

2 6. Structuring assignments to prevent agency workers from reaching the 12 week qualifying period 7. Are there restrictions on clients requesting agency workers for less than 12 weeks? -Examples of how to calculate the 12 week qualifying period -Annex 1 2

3 1. Introduction to the Agency Workers Regulations 2010 The Agency Workers Regulations 2010 came into force in England, Scotland and Wales on 1 October The Agency Workers (Northern Ireland) Regulations 2011 came into effect in Northern Ireland on 5 December In this Factsheet we use the term the Regulations to refer to both sets of regulations. Save for the commencement dates, the Regulations are the same in all of England, Scotland, Wales and Northern Ireland. The Regulations give agency workers the right to the same basic working and employment conditions they would receive if they were engaged directly by an end user client to do the same job; this is limited to conditions that relate to pay and working time. Agency workers are also entitled to access facilities and amenities that an end user client provides to its own workers and to be advised by a client * of vacancies which arise in the client s business (* the term hirer is used in the Regulations to mean the entity using the services of the agency worker. We use client throughout the Factsheets). This Factsheet is the third in a series of 7 which will look at the Regulations in detail. They have been written for REC Members that operate as employment businesses. For the purpose of this Factsheet agency means an employment business (which engages workers and supplies them to a client to work under the client s control and supervision). Employment agencies in the strict legal sense, which introduce candidates to a client to be engaged directly by that client, are not affected by these Regulations. A reference to an agency worker means the individual engaged by the agency and supplied to work for the client under the client s supervision and control (for further details on who is an agency worker see Factsheet 1). For the purposes of these factsheets, the Guidance means the guidance on the Regulations produced by the Department of Business, Innovation and Skills (BIS) which can be downloaded here or the guidance on the Northern Ireland Regulations produced by the Department of Employment and Learning (DELNI) available here. References to the Guidance are to both guidance documents. 2. 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 3

4 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 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? 4

5 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 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 (see section 3). 3. Breaks in assignments 3.1. 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 5

6 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. 8 WEEKS WORK 2 WEEK BREAK 4 WEEKS WORK Qualifying period starts- clock runs Clock suspended Clock resumes Worker qualifies for AWR 8 WEEKS S WORK A BREAK OF MORE THAN 6 WEEKS 12 WEEKS WORK Qualifying period starts- clock runs Clock resets to zero Qualifying period starts again- clock runs Worker qualifies for AWR 3.3. 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). 6

7 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 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 is available here 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; 7

8 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. 4. Achieving the qualifying weeks while working for different agencies and the issues this will raise for recruiters As set out in section 2, 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 8

9 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 (see Factsheet 5). The REC has produced a suite of model contracts for use when supplying agency workers. These contain an appropriate clause for obtaining the above information from the client or the agency worker. Please see Annex 1 for the text of these clauses Tracking entitlement 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 (see Factsheet 5). 5. 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. 9

10 6. Are agencies or clients allowed to structure assignments in a way to prevent agency workers from reaching the 12 week qualifying period or to 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. 10

11 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. 7. Are there any restrictions on clients requesting agency workers 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 11

12 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 1 October 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 5 December 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 2 January 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 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. 12

13 Example 4 E was a pregnant agency worker. She started a new assignment on 2 January 2012 and worked three days a week from that time. From 2 January 2012 E was entitled to access the client s onsite 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. At the time of writing we are not aware of any cases which have looked at the qualifying period or any breaks in assignment. 13

14 Annex 1 The REC has produced a suite of model contracts for use when supplying agency workers. Model Contract 3 (Terms of business with the hirer for the supply of agency workers) contains the following clause which states: 3.4 To enable the Employment Business to comply with its obligations under the Agency Workers Regulations, the Hirer undertakes as soon as possible prior to the commencement of each Assignment and during each Assignment (as appropriate) and at any time at the Employment Business request: [see Note 9] to inform the Employment Business of any Calendar Weeks since 1 October 2011 [or 5 December 2011 [see Note 9A]] in which the relevant Agency Worker has worked in the same or a similar role with the Hirer via any third party prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment which count or may count towards the Qualifying Period; if, since 1 October 2011 [or 5 December 2011 [see Note 9A]], the Agency Worker has worked in the same or a similar role with the Hirer via any third party prior to the date of commencement of the relevant Assignment and/or works in the same or a similar role with the Hirer via any third party during the relevant Assignment, to provide the Employment Business with all the details of such work, including (without limitation) details of where, when and the period(s) during which such work was undertaken and any other details requested by the Employment Business; to inform the Employment Business if, since 1 October 2011 [or 5 December 2011 [see Note 9A]], the Agency Worker has prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment: completed two or more assignments with the Hirer; completed at least one assignment with the Hirer and one or more earlier assignments with any member of the Hirer s Group; and/or 14

15 worked in more than two roles during an assignment with the Hirer and on at least two occasions worked in a role that was not the same role as the previous role; [see Note 10] save where the Agency Worker will not complete the Qualifying Period during the term of the Assignment, to: provide the Employment Business with written details of the basic working and employment conditions the Agency Worker would be entitled to for doing the same job if the Agency Worker had been recruited directly by the Hirer as an employee or worker at the time the Qualifying Period commenced or with those of a Comparable Employee, such basic working and employment conditions being the Relevant Terms and Conditions; inform the Employment Business in writing whether the Relevant Terms and Conditions provided are those of a hypothetical directly recruited employee or worker or those of a Comparable Employee; if the Relevant Terms and Conditions provided are those of a Comparable Employee, provide the Employment Business with a written explanation of the basis on which the Hirer considers that the relevant individual is a Comparable Employee; and inform the Employment Business in writing of any variations in the Relevant Terms and Conditions made at any time during the relevant Assignment after the Qualifying Period commenced; and save where the Agency Worker will not complete the Qualifying Period during the term of the Assignment, to provide the Employment Business with written details of its pay and benefits structures and appraisal processes and any variations of the same. If the client complies with the above clause, this should assist agencies in establishing whether the agency worker has worked in a particular role with the client before for the purposes of tracking and 15

16 monitoring the qualifying clock. There are also similar clauses in model contracts 5, 7, 13, 15, 21 and 25. The following is the relevant clause in Model Contract 4 (terms of engagement for an agency worker): 4.2 [see Note 15] If the Agency Worker accepts any Assignment offered by the Employment Business, as soon as possible prior to the commencement of each such Assignment and during each Assignment (as appropriate) and at any time at the Employment Business request, the Agency Worker undertakes to: inform the Employment Business of any Calendar Weeks between 1 October 2011 [or 5 December 2011 [see Note 15A]]and prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment in which the Agency Worker has worked in the same or a similar role with the relevant Hirer via any third party and which the Agency Worker believes count or may count toward the Qualifying Period; provide the Employment Business with all the details of such work, including (without limitation) details of where, when and the period(s) during which such work was undertaken and any other details requested by the Employment Business; and inform the Employment Business if, since 1 October 2011 [or 5 December 2011 [see Note 15A]], s/he has prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment: completed two or more assignments with the Hirer; completed at least one assignment with the Hirer and one or more earlier assignments with any member of the Hirer s Group; and/or worked in more than two roles during an assignment with the Hirer and on at least two occasions worked in a role that was not the same role as the previous role. 16

17 REC Legal January 2015 AWR Factsheets Factsheet 1: An introduction to the Agency Workers Regulations Factsheet 2: The application of the Regulations to limited company contractors Factsheet 3: How does an agency worker qualify for equal treatment? Factsheet 4: What is equal treatment? Factsheet 5: Liability for breach of the Agency Workers Regulations Factsheet 6: Maternity rights under the Agency Workers Regulations Factsheet 7: The Swedish Derogation - Employed agency workers when does equal treatment not apply? Edition History Edition 4 January 2015 Reviewed- visuals added in section 3.2 This document has been created for REC Corporate Members for information only. It is not a substitute for legal advice on related matters and issues that arise and should not be taken as providing specific legal advice on any of the topics discussed. REC All rights reserved: no part of this publication may be reproduced, stored in an information storage and retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the written permission of the REC. 17