Agency Workers:The 12 week qualifying period

The right to equal treatment does not apply until an agency worker has undertaken the same role, whether on one or more assignments, with the same hirer for 12 continuous calendar weeks. 

Any week during the whole or part of which an agency worker is engaged on an assignment is counted as a calendar week.

Admin nightmare but it gets worse.

If a hirer multisources through a range of agencies the same worker might appear from different suppliers, it is the hirer's responsibility to monitor and control this.

The time that counts toward the qualifying period will be broken if the agency worker starts a new assignment with the same hirer (whether through the same or different temporary work agency) but only where "the work or duties that make up the whole or the main part of that new role are substantively different from the work or duties that made up the whole or main part of the previous role"

What on earth does this mean?

It is clearly designed to prevent abuse but we had to ask our Lawyers on this one they believe it means:

• the worker would have to commence a new, separate assignment with the hirer. They can not be switched between roles in the context of the same contract with the agency
• The new assignment should be substantively different to the previous one. The meaning of substantive will defined in the guidance notes to be issued by the government. It is known that the government intends to guard against manipulation so cosmetic changes will be ineffective.

All this brings is greater inflexibility to the temporary labour market which is bad for all parties involved.

The potential administration burden on on Agencies, Workers and Hirers is tremendous and will see costs passed through as higher rates and will therefore be inflationary.

We desperately need some common sense to be applied in this area unless it is the government's intention to wipe of the temporary labour market. Truly ironic as the flexibility of the British labour market is much admired internationally.