7(1)The request is not valid unless the employer, taken with any associated employer or employers, employs—E+W+S
(a)at least 21 workers on the day the employer receives the request, or
(b)an average of at least 21 workers in the 13 weeks ending with that day.
(2)To find the average under sub-paragraph (1)(b)—
(a)take the number of workers employed in each of the 13 weeks (including workers not employed for the whole of the week);
(b)aggregate the 13 numbers;
(c)divide the aggregate by 13.
(3)For the purposes of sub-paragraph (1)(a) any worker employed by an associated company incorporated outside Great Britain must be ignored unless the day the request was made fell within a period during which he ordinarily worked in Great Britain.
(4)For the purposes of sub-paragraph (1)(b) any worker employed by an associated company incorporated outside Great Britain must be ignored in relation to a week unless the whole or any part of that week fell within a period during which he ordinarily worked in Great Britain.
(5)For the purposes of sub-paragraphs (3) and (4) a worker who is employed on board a ship registered in the register maintained under section 8 of the Merchant Shipping Act 1995 shall be treated as ordinarily working in Great Britain unless—
(a)the ship’s entry in the register specifies a port outside Great Britain as the port to which the vessel is to be treated as belonging,
(b)the employment is wholly outside Great Britain, or
(c)the worker is not ordinarily resident in Great Britain.
[F1(5A)Sub-paragraph (5B) applies to an agency worker whose contract within regulation 3(1)(b) of the Agency Workers Regulations 2010 (contract with the temporary work agency) is not a contract of employment.
(5B)For the purposes of sub-paragraphs (1) and (2), the agency worker is to be treated as having a contract of employment with the temporary work agency for the duration of the assignment with the employer (and “assignment” has the same meaning as in those Regulations).]
(6)The Secretary of State may by order—
(a)provide that sub-paragraphs (1) to (5) are not to apply, or are not to apply in specified circumstances, or
(b)vary the number of workers for the time being specified in sub-paragraph (1);
and different provision may be made for different circumstances.
(7)An order under sub-paragraph (6)—
(a)shall be made by statutory instrument, and
(b)may include supplementary, incidental, saving or transitional provisions.
(8)No such order shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament.
Textual Amendments
F1Sch. A1 para. 7(5A)(5B) inserted (1.10.2011) by The Agency Workers Regulations 2010 (S.I. 2010/93), reg. 1(1), Sch. 2 para. 7(2)