From 28 September 2020, people in England are required by law to self-isolate if they test...
Agency Workers Regulations: 'temporary' work requirement
Angard Staffing Solutions Ltd v Kocur
A worker who had an open-ended contract of employment with an agency was nonetheless supplied to work ‘temporarily’ for an end user.
Angard Staffing Solutions (ASS) is a company in the Royal Mail group and its only function is to supply staff to Royal Mail to supplement their permanent employees. Mr Kocur (who was one of many original claimants in this case) was an agency worker employed by ASS and supplied to work at Royal Mail, as a ‘flexible resourcing employee’, for the whole of his employment. Since 2015 he worked regular shifts in the Leeds Mail Centre on a succession of assignments to Royal Mail. He did not work for anyone else. He and his co-workers brought a tribunal claim under the Agency Workers Regulations 2010 and the issue was whether he was ‘supplied’ by ASS to work temporarily for and under the supervision and direction of Royal Mail (as required by reg. 3(1)(a)). ASS argued that his employment wasn’t temporary and that he couldn’t therefore be an agency worker. A tribunal disagreed and ASS appealed.
The appeal was dismissed.
To assess whether an agency worker is supplied temporarily to an end user, the focus should be on the basis on which the worker is supplied to work on each assignment – and this was what the tribunal had done. While the contract between the worker and the agency will form part of the evidential and factual matrix, it isn’t necessarily determinative. The question to be asked is – is the supply of the worker on the basis that, having embarked on the assignment, he or she will continue to work for the hirer indefinitely (whether full or part-time), or on the basis that the work will cease at the end of a fixed period, on the completion of a particular task, or on the occurrence of some other event?
Here the contract between ASS and Mr Kocur envisaged ‘engagements’, the details of which would be communicated verbally, including start and end dates. That alone suggested that what was contemplated was that there would be assignments to work temporarily. The tribunal also, correctly, looked at what happened in practice. Each of the engagements had an express end date, Mr Kocur didn’t know if he’d be called upon to work from one week to the next, and there were some fallow periods of two or three weeks over the course of his four years working at Royal Mail.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0050_20_1007.html
This is a useful clarification by the courts that the length of an assignment will not exclude the application of the Agency Workers Regulations and a reminder to those supplying agency workers to ensure there is a start and end date on any assignment.