Although the Department for Business, Innovation and Skills (BIS) guidance provides assistance on how to establish the qualifying period, it is bound to be a highly contentious area and potentially generate Employment Tribunal cases.
The twelve weeks must be spent working in "the same role". A new qualifying period will begin if the worker changes role, but only if the new assignment is substantively different. This may involve changes to the skill set required, different pay rates, location or hours, the use of different equipment or the requirement for additional training. The hirer must inform the agency of the change in role in writing and that the twelve week qualifying period will start again. The agency must then in turn inform the worker.
In the majority of cases, it will be relatively straightforward to identify whether the agency worker is working for "the same hirer". When the hirer has multiple sites and the agency worker alternates between sites, he/she will still be working for the same hirer. The BIS Guidance highlights that supply teachers working for different schools, but within the same local authority will also be working for the same hirer. This contrasts with a hirer who is part of a group of companies. Once the agency worker moves to a different limited company within the same group, a new qualifying period will start (subject to anti-avoidance provisions which are covered in the final article in this series).
It is the nature of temporary work for workers sometimes to be signed up to more than one agency. The Regulations however, concentrate solely on the type of work carried out and who this is for. It is irrelevant whether the agency worker is supplied by multiple agencies during the qualifying period.
Breaks of up to six weeks, for whatever reason, will cause the qualifying clock to pause, provided that the agency worker returns to the same role. Other breaks which cause the clock to pause include sick leave (of up to 28 weeks), annual leave, a temporary cessation of work for a predetermined time such as school holidays or seasonal factory shutdown, jury service (of up to 28 weeks) and industrial action.
In certain circumstances the qualifying clock will continue to run even during an absence from work. This exception applies where the absence is for a reason related to pregnancy, childbirth or maternity, paternity or adoption leave. The clock will continue to run until the end of the original assignment or the likely end if none had been specified
Some hirers may decide only to use agency workers for less than twelve weeks to avoid them completing the qualifying period. But be warned, deliberate attempts to avoid the Regulations can attract a fine of up to £5,000.
James Wilders is an employment partner at solicitors Dickinson Dees
