Agency workers’ rights to equal treatment must be assessed term by term

Under regulations 5 (1) and 7 (2) of the Agency Workers Regulations 2010 (“AWR”), agency workers who have worked for 12 continuous weeks within the same role are entitled to “the same basic working and employment conditions” as permanent employees carrying out an equivalent role.

These regulations only apply to “relevant terms and conditions” which are those relating to pay, duration of working time, night work, rest periods, rest breaks and annual leave (regulation 6 (1) AWR).

Angard Staffing Solutions is an employment agency that supplied temporary agency workers to the Royal Mail. Those agency workers, including the Claimant, worked alongside permanent employees at the Royal Mail.

In the case of Kocur v Angard Staffing Solutions Limited, Mr Kocur brought claims for the same basic working and employment conditions as Royal Mail permanent staff when he was placed in Royal Mail as an agency worker. The Claimant’s hourly rate of pay was 90p higher than the rate for permanent employees but he received 2.5 days less holiday a year and 30 minutes less paid rest break every day.

As the Claimant had worked at the Royal Mail for over 12 weeks, he had the right to the same working and employment conditions as he would have been entitled to had he been employed directly by the Royal Mail.

The Claimant first raised a grievance which was not resolved.  He subsequently brought an employment claim for breach of the AWR. He asserted, amongst other things, that he should be entitled to the same annual leave and paid rest breaks as Royal Mail’s permanent employees.

The Employment Tribunal (ET) Decision

The ET dismissed the Claimant’s claim as they considered that the “package” on offer to him as a whole, which included an enhanced rate of pay, did not infringe the principle of equal treatment underpinning the AWR.

The ET noted that over the eight-hour working day, the agency workers received the same rest break as the permanent employees and slightly more money overall.

In addition, in relation to annual leave, it was open to the agency workers to take an additional 2.5 unpaid days of absence (by declining to be available for work on those days) and still receive slightly more holiday pay overall than permanent employees.

The Claimant appealed this decision to the EAT.

The EAT held that there had been a failure to provide the Claimant with parity of terms and that a term by term approach, rather than a global or package approach was correct.

Annual leave

The EAT disagreed with the ET that a breach of the AWR could be avoided because a worker could nominally take 2.5 days leave during any period when they are not working for Angard. This would be difficult to enforce and a worker seeking a break from assignments in order to take the additional 2.5 days of annual leave might make themselves less likely to be offered assignments in the future.

Rest breaks

Regulation 5 AWR requires that the terms and conditions relating to rest breaks should be the same. The Claimant was only paid for half of the rest break and no satisfactory explanation was given as to why. The fact that he was paid more overall for the whole shift did not change the fact that he was paid significantly less for the rest break.

Administrative burden

The EAT was unimpressed by the argument that an “overall package” approach was justified by the additional administrative burden of complying with a “term by term” approach to paid holiday and rest breaks.

“The same”

The EAT noted that “the same” was construed as meaning “at least the same” and did not preclude agency workers from receiving enhanced pay or other entitlements. It therefore provided for a minimum level of entitlement and set the floor without imposing a ceiling on entitlements. Higher rates of pay could compensate for job insecurity but not for less favourable basic rights.

The EAT added that the AWR does not dictate the mechanism by with an agency worker must receive parity. For example this could be by means of a lump sum at the end of the assignment, or a higher, rolled up hourly rate. However any such arrangements should be transparent and readily comprehensible.

What does this mean for you or your business?

• When comparing basic working and employment conditions of agency and permanent employees under the AWR a term by term assessment is the appropriate approach to take.   This means that each basic term for an agency worker must be “at least” equivalent to that which the agency worker would enjoy if they were a permanent employee.
  
  
• Less favourable entitlements cannot generally be offset by other benefits such as enhanced rates of pay.
  
  
• You must not look at an agency worker’s remuneration as a whole when determining whether or not the worker’s terms meet the requirements in the AWR.

What do you need to be doing now?

• Ensure that if applicable, you adjust your policies and practices accordingly.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.