Employment Appeal Tribunal gives guidance on agency worker rights

Employment Appeal Tribunal gives guidance on agency worker rights

Worker status: an ability to release a job is not an unfettered right of substitution

In Angard Staffing Solutions Ltd v Kocur, the Employment Appeal Tribunal (EAT) has provided some useful guidance on various rights under the Agency Workers Regulations 2010 (AWR).

Background

Angard Staffing Solutions (ASS) is an employment agency owned by Royal Mail and which exclusively provides agency workers to Royal Mail when it has a surge in demand for postal workers. Agency workers engaged by ASS brought claims against both ASS and the Royal Mail, claiming 12 separate infringements to their rights under the AWR. At tribunal, they were successful in 5 of those complaints and consequently they appealed to the EAT.

The EAT decision

The most significant points to come out of the EAT decision were:

  • The right under Regulation 13(1) of the AWR for agency workers to be informed of vacancies with the hirer does not extend to a right to be considered for the vacancies on the same terms as directly recruited employees. The right is only to be notified on the same basis and to be given the same information about the vacancies as directly recruited employees.
  • The fact that agency workers’ shifts were 12 minutes longer than the comparable Royal Mail employees’ shifts was not a breach of the Regulation 5 right for agency workers to have the same basic working conditions as if they had been directly recruited. The difference in shifts was because agency workers worked 40 hours per week, not 39 hours like the Royal Mail employees, and there is no right under the AWR for agency workers to demand the same number of contractual hours as directly recruited employees.
  • There was no breach of Regulation 5 where employees were paid to attend weekly training sessions while the agency workers continued doing their “normal” work. The EAT said that there is no requirement in Regulation 5 for the content of working time to be the same.
  • Likewise, there was no breach of Regulation 5 simply because directly recruited employees were given a right of first refusal for overtime. The right to equality of treatment in relation to basic working and employment conditions does not extend to a right to equal treatment in relation to the opportunities for overtime.
  • The fact that employees were notified of the timing of their breaks at the start of the day, whereas agency workers took their breaks as and when directed by their manager, was not a breach of the AWR. The timing of breaks is not within the scope of Regulation 5 because it does not relate to the “duration of working time”.
  • However, it held that implementing a pay rise six months later for agency workers (as compared with directly recruited employees) could be a breach of the AWR. The EAT referred this to a different tribunal to reconsider this point.

Comment

The EAT’s ruling is a helpful clarification of how the AWR rights operate in practice and how far they go to ensure that agency workers are treated equally as compared to directly recruited employees.

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