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Qualifying for equal treatment after 12 weeks

In some cases, knowing you have qualified for equal treatment will be straightforward. You will have worked in the same job with the same hirer for 12 weeks.

Depending on the circumstances, breaks between assignments can either:

• count towards the qualifying period
• pause the qualifying period
• reset the qualifying period to zero

Your temporary work agency may ask you for information about previous assignments to help decide when or whether you are entitled to equal treatment.

There is no legal obligation to make you share this information. However, doing so will help ensure you receive equal treatment at the appropriate time. It might also affect any claim you make for equal treatment, as an Employment Tribunal could take this into account when deciding on compensation.

Working out your qualifying period

Your qualifying period starts again at zero if:

• you move to a new assignment with a new hirer
• you remain with the same hirer but you are no longer in the same role – you are doing a 'substantively different' role
• there is a break between assignments with the same hirer of more than six calendar weeks

Your qualifying period is paused for reasons including:

• a break for any reason that is no more than six calendar weeks and you return to the same role at the same hirer
• a break of up to 28 weeks because you are incapable of work because of sickness or injury
• any break where you take your leave entitlements, such as annual leave
• a break which is due to the workplace closing, such as a Christmas shutdown
• a break caused by a strike or other industrial action at the workplace
• a break due to attending jury service up to 28 weeks

Breaks that count towards your qualifying period include:

• pregnancy, childbirth or maternity breaks which take place during pregnancy and up to 26 weeks after childbirth
• any breaks due to taking maternity leave, adoption leave or paternity leave

When the break counts towards your qualifying period, it will be for the intended or likely length of the assignment (whichever is longer).

Working for more than one hirer

If you work for more than one hirer, you are eligible for equal treatment after 12 weeks with each hirer. That may mean you receive different terms and conditions after 12 weeks when on different assignments.

What is a 'substantively different' role?

If your job with the same hirer changes a lot, meaning that you are doing different work, it could mean that the role is substantively different. If so, the qualifying period would start again.

A 'substantive' change in a role requires duties which make up the whole or main part of your role to be different. It is not enough that only your line manager has changed or you have changed locations. There has to be a genuine and real difference to the role.

To make the role substantively different, there should be a combination of the following:

• different skills and competences used
• pay rate different
• work in different location
• line manager different
• working hours different
• role requires additional or new training
• different equipment involved

For the qualifying period to be reset to zero, your agency must tell you in writing that the role has substantively changed and the qualifying period will start again.

Example

You have worked in a warehouse on a production line to assemble a product. Simply moving you from a production line to a packing role requires little training and uses the majority of the same skills. It is unlikely to be substantively different.

However if you have worked on the production line and then move into an administrative role, then this is likely to be substantively different. In this situation the qualifying period starts again.

Where to find out if you are getting equal treatment

After the 12 week qualifying period, you are entitled to be treated as if you had been directly recruited or employed by the hirer in the same job.

The terms and conditions for someone directly recruited are usually set out in:

• standard contracts
• pay scales
• collective agreements - which are agreements negotiated between the hirer and a trade union
• company handbooks or similar including those found on intranets or staff notice boards

What measures will help ensure you get equal treatment

From 1 October 2023 there are measures to prevent the structure of assignments intentionally stopping you getting equal treatment.

In all circumstances you must have either completed:

• at least two assignments
• two roles with the same hirer or connected hirers (eg within the same group)

Factors that would indicate that a pattern of assignments was structured with the intention of depriving you of equal treatment could be:

• the number of assignments
• the length of assignments
• the number of role changes
• whether the roles were substantively different
• the length of break periods