Employment and Immigration Law Update – Definition of ‘agency worker’ under the Agency Workers Regulations 2010

In this case the Employment Appeal Tribunal considered whether workers supplied on a long-term basis to a single end-user were ‘agency workers’ for the purposes of the Agency Workers Regulations (AWR) 2010.

Angard Staffing Solutions Ltd v Kocur and others [2020] UKEAT/0050/20

Facts

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

At a preliminary hearing the tribunal had to decide whether the claimants were ‘agency workers’ within the meaning of the AWR 2010. The lead claimant, Mr Kocur, had been supplied to work for Royal Mail for over four years since January 2015. The respondents argued that the claimants were not agency workers under the AWR 2010 as they were not supplied to “work temporarily for” Royal Mail. The tribunal disagreed, finding that the supply of the claimants was temporary and therefore the AWR 2010 did apply. The tribunal held that the work was carried out under a series of assignments, each for a defined period. The respondents appealed to the EAT.

EAT decision

The EAT has dismissed the appeal, upholding the tribunal’s finding that the claimants are agency workers under the AWR 2010. 

The tribunal was correct to focus on the basis on which the worker is supplied to the end user, not whether the overarching relationship between the agency and the worker is temporary. The contractual documentation and communications between the agency and the worker will be relevant to the tribunal’s overall assessment of the facts, but are not necessarily determinative. The fact that each assignment was for a defined period by reference to a particular shift or shifts, meant that Mr Kocur was supplied to work “temporarily” for Royal Mail and was therefore an agency worker.

Consequences

This case is likely to be helpful for agency workers to establish a potential claim under the AWR 2010, even if they have been supplied for a long period to a single end-user client. It will be harder for the agency and the end user to defend a claim on the basis that the supply was not ‘temporary’, although a tribunal will look closely at the arrangements in place and the nature of the assignments in each case. It was significant here that the flexibility of the arrangements and the fact that each assignment had an express end date, was sufficient for the tribunal to conclude it was ‘temporary’ in nature.

These articles are from the July 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.