Employment and Immigration Law Update – Agency Workers rights

The Employment Appeal Tribunal has ruled on a wide range of claims brought under the Agency Workers Regulations (AWR) 2010.

Angard Staffing Solutions Ltd and anor v Kocur and anor, UKEAT/0105/19 and UKEAT/0209/19

Facts

The claimants in this case were employed by the respondent (Angard, a company in the Royal Mail group) and supplied on a flexible basis to its sole client, Royal Mail. As part of a long-running dispute involving multiple claims against both companies, the claimants brought various claims under the AWR 2010.

In this case, amongst other things the claimants complained in particular of breaches of Regulation 5, which gives agency workers the right to the same basic working and employment conditions as they would be entitled to as an employee of the hirer, and a breach of Regulation 13, which gives agency workers the right to be informed of any relevant vacant posts with the hirer.

An employment tribunal upheld five out of a total of twelve of their claims. Both parties appealed to the EAT.

EAT decision

In relation to Regulation 5, the EAT held that there was no breach arising from the fact that the agency workers’ shift lengths were 12 minutes longer than they would have been if the claimants were recruited directly. The weekly hours for direct recruits were 39 hours, and agency workers were given shifts based on a 40-hour week. Agency workers were paid in respect of this additional time. The EAT held that the AWR and the EU Temporary Agency Workers Directive that the AWR implements, do not entitle agency workers to the same number of contractual hours as a directly-recruited worker.

Additionally, the EAT held that the respondents were not in breach of Regulation 5 by providing their direct recruits with a 30-minute weekly training session, while agency workers were expected to continue working. Nor was there a breach by giving direct recruits first refusal in relation to overtime opportunities, by providing agency workers with a less detailed breakdown of information on their payslips, or by only scheduling short breaks in advance for direct employees.

The EAT remitted the question of whether a pay rise, implemented for agency workers six months after it had been implemented for comparable direct employees, was a breach of Regulation 5.

In relation to Regulation 13, the EAT held that the right to be informed by the hirer of vacancies does not mean that agency workers are entitled to apply for and be considered for internal vacancies on the same terms as directly-recruited employees. Agency workers could only apply for vacancies when they were advertised externally, when they would be in competition with external applications. They were ineligible for internal vacancies. The EAT held that under Regulations 13, the right is to be notified of vacancies and be given the same level of information as direct recruits, not a right to be eligible to apply.

Consequences

This decision, whilst specific to the facts of this particular (and highly complex) claim, provides us with some useful illustrative examples of how the rights granted to agency workers under the AWR apply in practice. It is particularly helpful for employers in finding that agency workers do not have the right to apply for vacancies on the same terms as direct recruits. The EAT also highlights in its decision the requirement for flexibility being at the heart of the relationship between agency workers and hirers.

These articles are from the December 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.