The Agency worker regulation (2011) does not specify a maximum or minimum number of weeks to fulfil the monitoring requirements for agency workers. It does specifically state that such monitoring is a joint responsibility of both agency and hirer.

At a minimum an agency worker who works 12 weeks continuously from Oct 1st 2011 will legal parity of employment conditions with the equivalent substantive employees. The 12 weeks can be referred to or thought of as a 12 week clock.

This 12 week period can (and under the existing legislation does) stretch for a number of reasons:

• If a worker has a period of up to and including 5 weeks absence for any reason then the 12 week clock will pause. So the scenario of working 1 week, having 5 weeks off, and then working a week, then 5 weeks off and so on until they have worked 12 weeks is a valid period under the statutory legislation document. This means the 12 week period can be extend to 12 weeks (worked ) plus 11 times 5 weeks off, or  55 + 12 weeks (67 weeks)
• The next largest extension period to be considered for the now slightly misnamed "12 weeks" is leave due to sickness, injury or jury service. The legislation dictates a pause of up to 28 weeks in the running of the clock. As the previous limit (67 weeks) is more than a year, it is very reasonable that there will be a significant number of instances where there are two such periods of leave. This means the 12 week period can be extended a further 56 weeks.  We now have a total of 123 weeks or just under 2 and a half years.
• The clock is also paused in cases of strikes, Annual leave, shut downs (factory closure, school holidays)
• In the case of Pregnancy and maternity related absence, ( the relevant period of pregnancy starts at the start of pregnancy and ends 26 weeks after childbirth) the clock keeps ticking
• If the worker has a contract with the agency and is entitled to pregnancy and maternity related absence then the clock keeps ticking.

Willy-nilly?

Its possible to interpret the act so that if a worker has a contract with an agency whereby they are entitled to receive statutory maternity, paternity or adoption leave and the worker enters the protected period for pregnancy at the start of pregnancy, the situation could arise where a worker works only for a week (or even a day) at a hirer and then achieves equality of employment 11 weeks later whilst still on leave.
We have this and a number of other questions for clarification in correspondence with the Department of Business and Innovation (etc). The will be published here.
If you have a query then please forward it to us. If we can answer it we will put it in a further article. If we need clarification then we will add it to our existing dialog with the Department of Business and Innovation (etc).

Additional information

We have a number of questions with the Department of Business and innovation relating to clarification on the AWR. The answers when they come will be published in this section of our site.

Update:

The AWR has been updated, https://www.legislation.gov.uk/uksi/2011/1941/made

We have received clarification (amongst other things, on the order in which certain conflicting provisos should be applied). These changes will be incorporated in our end of September release.

Other pages which may interest you

• Summary of the Agency worker regulation and the employee scheduling factors.
• Agency worker regulations AWR reports
• Agency worker regulations AWR re-setting the clock

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