Can agency workers insist on equivalent working hours to directly employed colleagues?

• United Kingdom

• Employment law

15-07-2019

The Court of Appeal has handed down its decision in the agency worker case of Kocur v Angard Staffing Solutions Limited finding that, when it comes to achieving “the same” basic conditions under the Agency Workers Regulations, this does not extend to working hours. Providing a final point of clarification in what has proved to be a particularly significant case in the context of agency working, the CA rejected Mr Kocur’s contention that he should have access to the same working hours (ie 39 per week in this case) as direct recruits.

The earlier EAT decision that end users must apply a term by term approach to ensuring parity of terms for agency workers remains just as important and relevant for employers.

Background

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 undertaking the same role.

Mr Kocur was employed by Angard Staffing Solutions Limited and was placed to work at Royal Mail. He discovered that his 28 days’ annual holiday and 30 minutes of paid rest breaks (with an additional 30 minutes unpaid) were less than those of Royal Mail staff whom he worked alongside. The Company justified the differences citing the higher hourly rate paid to agency workers, which was taken into account in calculating periods of paid rest and holiday entitlement to produce equivalence “in the round”.

Mr Kocur brought a tribunal claim, alleging various breaches of AWR, including his reduced holiday entitlement, paid rest and his inability to choose to work full-time, which he contended fell short of his right to “the same” basic conditions. His claims were largely rejected by the Employment Tribunal, which found that the end user must retain control over working hours of agency workers but also that the disparities in terms to be compensated for in the higher hourly pay received by Mr Kocur.

The principal issue on appeal before the EAT was whether the AWR requires a term by term comparison to establish equality or permits a package-based approach (the EAT finding in favour of the former and that that neither the Agency Workers Directive nor the AWR provide for the off-setting of a failure to confer a specific entitlement with a higher rate of pay). However, the question of whether “the same” basic terms should allow Mr Kocur access to equivalent working hours to direct recruits was also considered. The EAT once more rejected this aspect of Mr Kocur’s claim, finding that reference within the AWR to “terms and conditions relating to… the duration of working time” needing to be “the same” does not extend to the amount of work that the worker is both entitled and required to do, “a construction which would also be inconsistent with the underlying purpose of the legislation”.

The decision of the Court of Appeal

The sole issue on appeal before the CA was Mr Kocur’s contention that he should have access to the same working hours (ie 39 per week in this case) as direct recruits.

Following the decisions of the ET and EAT, the CA dismissed the appeal on this issue, confirming that AWR do not entitle agency workers to work the same contractual hours as a comparator.

Comment

This ruling by the CA is clearly helpful for end-user employers and a common sense one to preserve the essence of staffing flexibility associated with agency working. However, the earlier findings of the EAT in establishing that “the same” means “at least as good as”, in terms of setting a floor on agency worker terms, remains just as significant and relevant for employers. It is now clear that end users may not look to off-set a failure to confer a specific entitlement with a higher rate of pay, a decision which the CA was not invited to revisit in this most recent appeal.

Importantly, as the EAT acknowledged, this does not rule out the possibility of rolling up specific aspects of agency worker pay, such as rest breaks and holiday pay. The EAT noted that AWR prescribe the principles of parity of terms, not the mechanism by which this is achieved. As a result, provided statutory minimum rights under the Working Time Regulations were accessible to Mr Kocur (payment in lieu for which is prohibited other than at the end of employment), there may have been no breach of AWR had the employer either paid Mr Kocur his identical entitlement by means of a higher hourly rate of pay or, in respect of holiday, by lump sum at the end of the assignment. A clear proviso in either case, however, would be that this was not only clearly stated to him up front but the basis of how payment was arrived at was transparent (factors which were lacking in Mr Kocur’s case).