Agency Workers: Equal in some respects but not all

11 Oct 2019

The Agency Worker Regulations 2010 (“AWR”) came into force on 1 October 2011. Put briefly,  the AWR  give agency workers, who have worked on an assignment for more than 12 weeks,  the right to the same “basic working and employment conditions “ as those enjoyed by an employee of the hirer who does the same job.    

These “basic working and employment conditions” are:

(a)    Pay;

(b)    The duration of working time;

(c)    Night work;

(d)    Rest periods;

(e)    Rest breaks; and

(f)    Annual leave.

Where, precisely, should the line be drawn between those “basic working and employment conditions” which are available to agency workers and those which are not?  

For example, the AWR themselves make clear that the “Pay” to which agency workers are entitled includes any fee, bonus, commission, holiday pay or other emolument referable to the employment. However it excludes occupational sick pay, pensions, maternity, paternity or adoption pay, redundancy pay and any bonus or incentive payment which is not directly attributable to the amount or quality of the work done by the employee.

So, under the AWR, agency workers are sometimes equal and sometimes not.

The case of Kocur v Angard Staffing Solutions Limited

The case of Kocur v Angard Staffing Solutions Limited has provided some further clarity about how the AWR apply to pay, the duration of working time, rest breaks and annual leave. 

Angard was the agency who supplied Mr Kocur to its client, RMG Limited. Mr Kocur worked on an assignment at RMG Limited for more than twelve weeks. This triggered his right to equal treatment under the AWR in respect of “basic working and employment conditions”.  RMG’s practice was to pay its temporary workers more money per hour than its permanent workers to compensate them for the fact that they did not receive the same annual leave and paid rest breaks as comparable full time employees. Mr Kocur also worked fewer hours than comparable full time employees. 

Mr Kocur brought a tribunal claim against Angard. He claimed  that he was entitled to exactly the same annual leave and paid rest breaks as comparable full time employees and that RMG could not compensate him for the lack of these by paying him more generously. He also claimed to have the right to the same “duration of working time” as comparable permanent employees of RMG. 

The Employment Tribunal dismissed his claims. 

Mr Kocur appealed to the Employment Appeals Tribunal (“EAT”).  He was right to do so because the EAT allowed his appeal about pay, annual leave and rest breaks. The EAT held that  RMG could not give agency workers compensating rights such as enhanced pay. It had to treat them exactly like comparable permanent employees. Mr Kocur was not, however, successful in his argument that the words “the duration of working time” meant that he was entitled to the same working hours as comparable employees and therefore able to earn the same as them.  

Mr Kocur appealed again on the “duration of working time” point to the Court of Appeal. The Court of Appeal dismissed his appeal. It held that the phrase “duration of working time” referred to employment terms which set a maximum length for any working period.  For example, if the maximum period of work for a comparable RMG employee was 48 hours per week, Mr Kocur could not be asked to work for longer. It did not give Mr Kocur a right to work for as long as a comparable permanent employee. 

The Court of Appeal confirmed that the purpose of the AWR  was to ensure the equal treatment of agency workers whilst they are at work  but not the amount of work agency workers were entitled to be given when at work. 

When considering the AWR, the courts are involved in a careful balancing act: on the one hand ensuring that agency workers receive the rights to which they are entitled whilst, on the other hand seeking to preserve the flexibility of agency workers which makes them attractive to hirers. Mr Kocur may feel that the strict letter of the law was applied to him in his complaint about pay but the letter of the law was applied to him a little more flexibly when it came to his claim for equal duration of working time. 

If you have any questions about this complex and evolving area of law, please contact our employment team here at DHM Stallard LLP. 

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