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Employment Law Cases
Agency workers' rights: EAT clarifies various aspects
Angard Staffing Solutions Ltd v Kocur
The EAT has clarified the scope of certain rights under the Agency Workers Regulations 2010, principally the right to be informed of vacancies (reg.13) and the right to the same basic working conditions as directly employed hires (reg. 5).
Mr Kocur and colleagues worked as agency workers for Royal Mail, supplied via its wholly owned subsidiary employment agency Angard. They are no strangers to litigation, having been to the EAT (twice) and Court of Appeal (once) on various preliminary issues relating to their claims. This is the substantive hearing of their claims.
They complained of various breaches of the Agency Workers Regulations 2010 (AWR) by Angard and Royal Mail:
- breaches of reg. 5, which provides that an agency worker shall be entitled to ‘the same basic working and employment conditions as [the agency worker] would be entitled to for doing the same job had [the agency worker] been recruited by the hirer’, and
- breaches of reg. 13, which provides that ‘an agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer’
They succeeded in five of their claims, against which Angard and Royal Mail appealed. The claimants also appealed against certain of the tribunal’s findings adverse to them.
Mr Kocur’s appeal was dismissed, but with one issue being remitted for reconsideration.
Mr Kocur and his colleagues had been informed of internal vacancies but complained that only directly recruited staff were eligible to apply for the advertised roles.
The EAT held that the right to be informed in reg. 13 does not mean that an agency worker has a right to be entitled to apply for, and be considered for, internal vacancies on the same terms as directly recruited employees. The right is simply to be notified of any vacancies on the same basis as directly recruited employees, and the right to be given the same level of information about the vacancies.
Mr Kocur and his colleagues complained that compared to directly recruited staff their shifts were 12 minutes longer (for which they were paid), two of their breaks were not scheduled in advance, they did not receive first refusal on overtime, they did not receive ‘Work Time Listening and Learning’ training sessions, and their payslips contained less detailed information.
The EAT held that:
- The right to equality of treatment in relation to basic working and employment conditions regarding overtime does not extend to a right to equal treatment in relation to opportunities for overtime. Direct recruits being given first refusal for overtime slots in preference to agency workers did not breach the AWR.
- There is nothing in either the wording of the relevant EU directive or the AWR to suggest that equality of treatment is required in relation to the content of working time. Direct recruits attending training sessions when agency workers were expected to carry on with the normal work did not breach the AWR.
- The right to equal treatment in relation to ‘pay’ does not extend to a right to the same pay information on payslips. Such payslips simply needed to comply with s. 8 of the Employment Rights Act 1996 which permits the use of aggregate figures.
- The AWR do not entitle agency workers to work the same number of contractual hours as a comparator direct recruit. The reference to equal treatment in relation to ‘the duration of working time’ has a more limited meaning: if the hirer sets a maximum period when a comparable employee could be required to work, the hirer cannot set a different maximum for agency workers.
- The timing of breaks was not within the scope of reg. 5 because it did not concern ‘the duration of working time’.
The EAT did remit an issue as to whether a delay of six months in implementing a pay increase for agency workers, compared to directly recruited staff who had received the pay increase sooner, was a breach of the AWR.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0105_19_1112.html
This case and the various side issues dealt with on its journey to the EAT has helped to clarify the rights of agency workers, which will be welcomed by business.