The recent Court of Appeal case of Kocur v Angard Staffing Solutions Ltd [2019] EWCA Civ 1185 has confirmed that hirers do not need to provide the same number of weekly hours of work to agency workers as they provide to their full time permanent members of staff.
Background
The Agency Workers’ Regulations 2010 (AWR) provide that, from day one of an assignment, agency workers are entitled to the same collective facilities as permanent employees (for example use of a communal canteen and similar). From week 12 of an assignment, agency workers have the right to the same basic working and employment conditions that are ordinarily included in the hirer’s permanent employees’ contracts. This includes terms relating to pay and, crucially for this case, terms relating to the “the duration of working time”.
Facts
Mr Kocur was an agency worker engaged by Royal Mail through an agency to boost their permanent workforce. Once he had passed the twelfth week of his assignment, he brought a claim under the AWR that he was entitled to the same basic working and employment conditions that he would have enjoyed had he been employed directly by Royal Mail. In particular, he argued that, as many of Royal Mail’s direct employees had a 39 hour working week within their contract of employment he, too, should be entitled to such a minimum guaranteed number of hours each week.
Decision
The Employment Tribunal rejected his claim, as did the Employment Appeal Tribunal. In both instances, it was held that hirers needed to have flexibility as to the amount they used agency workers and the AWR did not provide for those workers to be entitled to exactly the same number of hours as those provided to the hirer’s own employees.
When the case reached the Court of Appeal, the Court agreed with the Tribunals and held that the provisions within the AWR which provided the right to agency workers to enjoy the same terms relating to “the duration of working time” were intended by Parliament to reflect the protections in the Working Time Regulations. That is, the AWR provides that, from week 12 of an assignment, agency workers are entitled to the same rest breaks and limits on the duration of working time as are in place for permanent employees. The Court held that the purpose of the AWR is to ensure equal treatment of agency workers and permanent employees, not to regulate the amount of work to which agency workers are entitled.
Comment
This judgment makes sense – one of the main purposes of using agency workers is to enable hirers to fill gaps in their workforce as required and it would be counter-intuitive if such workers were entitled to equivalent hours as permanent employees. The case is, however, a useful reminder of the rights afforded to agency workers under the AWR, both at day one of an assignment and following week 12.
Rebecca Berry