AWR do not confer right to same contractual hours of work

Kocur v Angard Staffing Solutions Ltd

An agency worker’s right to equal treatment in relation to the ‘duration of working time’ under the Agency Workers Regulations does not entitle him or her to the same number of contractual hours as a directly recruited comparator.

The Agency Workers Regulations 2010 (AWR) require end users to provide the same basic working and employment conditions to agency workers as they provide to their direct employees carrying out the same role.

Background

Mr Kocur was an agency worker who had worked for the hirer, Royal Mail (RM), long enough to become entitled to 12-week rights and equal treatment with Royal Mail’s permanent staff under AWR, reg. 5. He brought a tribunal claim arguing that he should be entitled to the same annual leave and paid rest breaks as RM’s employees, and that he wasn’t given the same amount of work as RM’s employees (typically he was allocated less than 20 hours per week). The tribunal dismissed his claims. As regards parity of working hours, the reference in AWR, reg. 6 to equal treatment in relation to ‘duration of working hours’ did not mean an entitlement to equivalent hours. As regards his less generous rest break/leave entitlements, this was compensated for by an enhanced hourly rate of pay. Mr Kocur appealed.

The EAT allowed his appeal in relation to annual leave and rest breaks, holding that the AWR require a term-by-term approach. However, it agreed with the tribunal as regards parity of working hours, holding that the approach for which Mr Kocur argued would be inconsistent with the underlying purpose of the AWR. Mr Kocur appealed to the Court of Appeal on this issue alone.

Court of Appeal decision

His appeal was dismissed.

The AWR do not entitle agency workers to work the same number of contractual hours as a comparator – and this accords with both the purpose of the AWR and the EU directive on which they are based. The directive aims to secure equality of treatment of agency staff and permanent employees while at work, and in respect of rights arising from their work, but not the amount of work which agency staff are entitled to be given.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1185.html

Comment

This decision preserves the essence of staffing flexibility associated with agency workers. Employers should however note the earlier EAT decision regarding the term-by-term comparison. End users of agency staff cannot try to offset a failure to confer a specific entitlement under the AWR with a higher rate of pay – an aspect of the EAT decision which the Court of Appeal was not invited to revisit in this appeal.