4. Rights after 12 weeks
Rights after 12 weeks in the same job.
Overview
These new equal treatment entitlements will only come into effect after the agency worker completes a 12 week qualifying period with the same Hirer.
They are:
- pay related to work undertaken on assignment;
- duration of working time
- night work
- rest periods
- rest breaks
- annual leave
- paid time off for ante natal appointments
How do I calculate the 12 week qualifying period?
The 12 week period is triggered by working in the same job for the same Hirer for 12 calendar weeks. A calendar week comprises any period of 7 days starting with the first day of the assignment irrespective of how many hours the agency worker does in any one week.
It is not retrospective so an agency worker will only be able accrue 12 weeks after the 1st October 2011 even if the assignment started earlier.
If there is a break between absences of more than 6 weeks this will act as a trigger to restart the qualifying period.
There are very specific rules in relation to the suspension of the qualifying period and restarting of the period for temporary absences including sickness absence and pregnancy related absence. Any TWA or Hirer should take specialist advice form IMS in these circumstances.
TWA’s and Hirers should also be aware of anti-avoidance provisions, which address any situations that are designed to deliberately deprive an agency worker of their entitlements.
For example there is no obligation upon a Hirer to engage the agency worker beyond the 12 week qualifying period. They could reengage the agency worker in a different role or the same role after a break of 6 weeks. This could be justifiable having regard to all the circumstances. However if there was then a third assignment this could be viewed a deliberate and regular pattern to avoid the AWR.
Rights after 12 week qualifying period
Pay
What is included:
- Basic Pay
- Overtime
- Shift/unsociable hours allowance
- Payment for annual leave (above the statutory minimum which is added to the hourly/daily rate
- Bonus. Commission where the bonus or commission is directly attributable to the amount or quality for the work done by the individual.
- Additional discretionary payments that have become custom and practice.
- Vouchers or stamps
What is excluded:
- Occupational sick pay
- Occupational pensions. NB new Pension provisions phased in from October 2012
- Occupational maternity, paternity or adoption pay
- Redundancy pay
- Notice pay (statutory or contractual)
- Payment for time off for Trade Union duties
- Guarantee payments as they apply to directly recruited staff if laid off
- Advances in pay or loans e.g. for season tickets
- Expenses such as accommodation and travel expenses
- Payments or rewards linked to financial participation schemes such as share ownership schemes, phantom share schemes
- Overtime or similar payments where the agency worker has not fulfilled qualifying conditions required of a direct employee
- The majority of benefits in kind, given as an incentive or reward for long-service
- Any payments that require an eligibility period of employment/service
- Bonuses which are not directly linked to the contribution of the individual
- Additional discretionary, non-contractual bonuses that are not regular payments
Further guidance is available from IMS in relation to these issues.
