Disparity of agency worker working conditions to be judged on a term-by-term basis

Fairness of Dismissal and Knowledge of a Protected Disclosure

Regulation 5(1) of the Agency Workers Regulation 2010 (“AWR”) entitles an agency worker, after 12 continuous weeks in the role, to the same basic working and employment conditions that they would have had if they been recruited directly by the hirer.

Kocur v Angard Staffing Solutions UKEAT/0181/17 provides the first Employment Appeal Tribunal (“EAT”) decision on the assessment of “the same basic working and employment conditions”, finding that the comparison must be on a term-by-term basis and not as a global assessment.

Facts                                                                                                                                 

Mr Kocur was an agency worker supplied to the Royal Mail by Angard Staffing Solutions. His claim that the AWR was breached was based on the following:

  • agency workers were entitled to less annual leave than employees;
  • agency workers were only paid half of their hour break whilst employees were paid for the full hour; and
  • agency workers were not entitled to the same weekly working hours as employees.

The Employment Tribunal rejected Mr Kocur’s claims on the grounds that he received an enhanced hourly rate in comparison to Royal Mail employees and that this was adequate compensation for the less generous holiday entitlement and rest breaks. Further it was determined that agency work required flexibility of working hours in line with business needs and that, in any event, it would be impossible to determine what working hours would be an ideal comparator as employees at the Royal Mail worked varying hours.

Decision

Allowing the appeal, the EAT found that, although Mr Kocur was better off than the employees as a result of his enhanced pay rate, taking account of the disparity in the annual leave allowance and rest break compensation, this did not equate to parity of rights. The EAT held that there is nothing in the AWR that enables the agency or hirer to offset a failure to confer a specific entitlement with a higher rate of pay.  Instead, a term by term approach is required by the AWR.  Therefore the agency worker is entitled to receive remuneration in respect of annual leave and breaks which is at least that which employees receive.  The EAT did however find that this may in theory be achieved by a different mechanism, provided this is transparent.  This was not the case here.

The Employment Tribunal’s decision regarding parity of the working week was upheld on the grounds that the AWR requirement of parity of duration of working time was aimed at ensuring that agency shift lengths did not exceed employees’ shift lengths. Any obligation to ensure that agency worker were entitled to the same number of hours as employees would undermine the flexibility required of agency workers.

Comment

The decision provides clarification as to the way in which agency workers’ rights should be compared to employees’ rights. Whilst the decision may be appealed to the Court of Appeal, employers and agencies should take note of the rejection of the global assessment of rights in favour of a term-by-term basis. It was further noted that higher pay rates of agency workers is often compensation for a lack of job security and employers cannot rely on this to explain differences in terms. If disparity of rights is to be compensated by higher pay then this must be transparent and must be explicitly set out at the outset to avoid risking a breach of the AWR.

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